Rogers v. Canadian Northern Shield Insurance Co. and others, 2025 BCHRT 99
Date Issued: May 2, 2025
File CS-001227
Indexed as: Rogers v. Canadian Northern Shield Insurance Co. and others, 2025 BCHRT 99
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:
Lorelei Rogers
COMPLAINANT
AND:
Canadian Northern Shield Insurance Company, British Columbia Automobile Association, Echelon Insurance Company, Family Insurance Solutions Inc., Mutual Fire Company of British Columbia, Intact Insurance Company, Elite Insurance Company, Peace Hills General Insurance Company, and Aviva Canada
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Devyn Cousineau
Dates of Hearing: March 4-8 and August 12-16, 19-23, 2024
Written submissions completed: November 30, 2024
Location of Hearing: Via videoconference
On her own behalf: Lorelei Rogers
Counsel for Canadian Northern Shield Insurance Company: Spencer Toffoli and Kaelyn Burns
Counsel for British Columbia Automobile Association: Nigel Trevethan and Dionne Liu
Counsel for Aviva Insurance Company, Echelon Insurance, and Elite Insurance Company: Hollis Bromley and Tenley Pearce
Counsel for Family Insurance Solutions: Emily Unrau and Setareh Khasha
Counsel for Mutual Fire Company of British Columbia: David Bilkey, KC, and Blair Driedger
Counsel for Intact Insurance Company: Samantha Stepney
Counsel for Peace Hills General Insurance Company: Deanna Zaal
CONTENTS
- I INTRODUCTION
- II PLAIN LANGUAGE SUMMARY AND DECISION OVERVIEW
- III HEARING PROCESS AND EVIDENCE
- IV FACTUAL BACKGROUND
- V THE COMPLAINANT’S CASE
- VI JUSTIFICATION
- VII APPLICATION FOR COSTS
- VIII CONCLUSION
I INTRODUCTION
[1] Lorelei Rogers lives in a rural area. She has disabilities which she treats using medicinal cannabis. She obtained a license from Health Canada to grow up to 49 cannabis plants for personal use. In 2018 and 2019, she began growing her own cannabis in a decommissioned mobile home on her property. When she disclosed her intention to grow up to 49 cannabis plants to her home insurer, Canadian Northern Shield [ CNS ], it declined to renew her home insurance. Dr. Rogers and her insurance broker contacted several other insurance companies, which also advised they would not insure the property.
[2] In this human rights complaint, Dr. Rogers alleges that nine insurance companies discriminated against her based on her disabilities by refusing to offer her home insurance while she was growing more than four cannabis plants. She says this is discrimination in a service customarily available to the public, in violation of s. 8 of the Human Rights Code.
[3] The nine Respondents are insurance companies which sell standard homeowners insurance. Six of these companies will not insure properties where more than four cannabis plants are grown because of an increased and unpredictable risk of property damage or loss. Three of the Respondents may insure properties growing more than four cannabis plants, based on a full application for insurance. In their defence, all the Respondents argue that Dr. Rogers has not proven that she was denied a service they customarily provide to the public because of any disabilities. In the alternative, they argue that any disability-related adverse impacts from their policies are justified under the legal framework for a bona fide reasonable justification. As such, they say, their policies do not breach the Code . They ask for the complaint to be dismissed.
[4] This hearing was bifurcated into separate stages for liability and remedy. At Dr. Rogers’ request, the Tribunal made several accommodations in its hearing process. This included having all direct evidence submitted in writing and allowing Dr. Rogers to participate using an audio-to-text function in Microsoft Teams. I am grateful to all the parties for their work to complete a challenging hearing. I thank all counsel for their considerable efforts to work together to streamline the process wherever possible.
[5] For the reasons that follow, the complaint is dismissed.
This is a long decision, and so I begin with a short plain language summary
of my findings.
II PLAIN LANGUAGE SUMMARY AND DECISION OVERVIEW
[6] Dr. Rogers has disabilities that she treats with medical cannabis. She has a legal license to grow up to 49 cannabis plants indoors at her home. Her decision to grow cannabis under this licence is connected to her disabilities.
[7] Each of the insurance companies in this case sell homeowners insurance to the public. They each have policies about insuring properties where cannabis is grown.
[8] Aviva Insurance, Elite Insurance, and BC Automobile Association [ BCAA ] might insure a property growing more than four cannabis plants. This depends on a full risk assessment. However, I find that:
a. BCAA did not deny Dr. Rogers a service. Dr. Rogers did not tell BCAA she was growing medical cannabis. BCAA did not say it would not insure her if she was growing medical cannabis.
b. Aviva and Elite did deny Dr. Rogers a service. However, Dr. Rogers’ disability was not a factor. They would not insure her property for other reasons.
The complaint is dismissed against these Respondents because Dr. Rogers did not prove the parts of her case against them.
[9] The other six Respondents are Family Insurance, Echelon Insurance, Intact Insurance, Mutual Fire Insurance, Peace Hills, and Canadian Shield Insurance. These companies do not insure any property growing more than four cannabis plants. Each of these insurers denied Dr. Rogers home insurance. Her disability was a factor in the denial. However, their insurance practice is justified because:
a. It was made for a valid purpose. It was based on legitimate risks about growing cannabis, and challenges with insuring those risks. It is consistent with industry practice.
b. It was made in good faith. It was not based on stereotype or stigma.
c. There is no reasonable or practical alternative. Insuring properties with more than four cannabis plants requires an individual assessment. These companies do not have the resources or expertise to do the individual assessment. If they did, they would have to charge higher premiums.
The complaint is dismissed against these Respondents because they have proven a defence to discrimination.
[10] I begin my decision with some background information about this hearing, and the facts leading to Dr. Rogers’ complaint. After that, my decision is organized around the two-stage discrimination analysis. I begin with the elements that Dr. Rogers must prove. I then go on to consider the Respondents’ defence of bona fide reasonable justification.
[11] At the end of the decision, I address Dr. Rogers’ application for costs. I find that the Respondents have not behaved improperly. I deny the application. I do not consider Dr. Rogers’ arguments about the Criminal Code, Insurance Act, Financial Institutions Act, Business Practices and Consumer Act, and the fiduciary duties of insurance companies, because they are about issues that fall outside the Tribunal’s jurisdiction under the Code.
III HEARING PROCESS AND EVIDENCE
[12] This was a complex hearing. This was partly because of the number of Respondents. Dr. Rogers originally filed complaints against 14 companies, most of which were represented by separate legal counsel. After Dr. Rogers closed her case, I dismissed the complaint against four companies: Rogers v. Canadian Northern Shield Insurance Company and others (No. 2), 2024 BCHRT 221. After Dr. Rogers’ former insurance broker gave her evidence, Dr. Rogers withdrew the complaint against the broker, Interior Savings. Nine Respondents remain.
[13] Dr. Rogers also requested, and was granted, many accommodations throughout this process. The Tribunal gave her reminders of her deadlines, advance notice of its decisions, ensured management by the same case manager and Tribunal Member, and used plain language wherever possible to explain the process: letter dated January 19, 2023. I bifurcated the hearing into liability and remedy stages. I also granted Dr. Rogers’ requests to minimize hearing time by having direct evidence submitted in writing, and to participate in the oral parts of the hearing using the talk-to-text function in Microsoft Teams: letter dated December 9, 2022. I gave Dr. Rogers a list of questions to address in her evidence: letter dated January 26, 2023. I scheduled hearing days for four hours, allowing for frequent breaks: letter dated February 6, 2023.
[14] Dr. Rogers requested several times that the Respondents not be permitted to cross-examine her. I refused this request, explaining:
The Human Rights Tribunal is accountable to the courts. It is more flexible than a court of law but still has to follow rules about procedural fairness. It is a process where each side has a burden to prove certain things, and the other side has a right to defend themselves. Cross examination is part of this process. I cannot deprive any party of the opportunity to cross-examine witnesses on relevant, disputed issues. I can, however, manage cross-examination to minimize the impact. This can include, for example, requiring clear questions and giving breaks as needed. [letter dated January 19, 2023; see also letter dated December 9, 2022]
The Respondents worked together to minimize the length of cross-examination and ensure that they did not duplicate their questions.
[15] Dr. Rogers submitted two sworn written statements, and answered questions in cross-examination: Exhibits 25 and 26. I resolved the Respondents’ objections to her documentary evidence in writing, and admitted 24 of her documents: Exhibits 1-24; letter decision dated September 25, 2023 with appendices. I also admitted a letter written by Dr. Erin Nichol, a family doctor who prescribed Dr. Rogers medical cannabis: Exhibit 28. Dr. Nichol attended the hearing for cross-examination.
[16] The Respondents collectively submitted evidence from 23 witnesses, including four joint experts. Dr. Rogers identified 15 witnesses that she wanted to cross-examine, including all the experts. She ultimately declined to cross-examine one of the experts because of a request from a member of the public to attend the hearing on the day the expert was scheduled to appear. She cross-examined the remaining 14 witnesses.
[17] I am grateful to all the witnesses for their evidence. The evidence of the Respondents’ witnesses was largely uncontested, and corroborated by documents. To the limited extent there were factual disputes, I have preferred the Respondents’ evidence over Dr. Rogers’. This is because I have found that some of Dr. Rogers’ evidence was not reliable.
[18] Whether a witness’s evidence is reliable depends on their ability to accurately observe, recall, and recount the events at issue: 0928772 BC Ltd v. Ross, 2024 BCSC 1436 at para. X; R. v. HC, 2009 ONCA 56 at para. 41. This is not necessarily the same as credibility, meaning whether the witness testified truthfully. In this case, I accept that Dr. Rogers gave evidence that she believed to be truthful and was, in that sense, honest. However, in my view, she was not always able to give accurate testimony about details in her complaint because of her single-minded perspective and poor memory.
[19] By single-mindedness, I mean that it is apparent that Dr. Rogers has constructed a narrative of the issues in this complaint which demonizes the insurance companies and is not based on facts. This was apparent throughout the process, including in Dr. Rogers’ closing submissions and her application for costs (which I address below). In those submissions, Dr. Rogers accuses companies of calling her a criminal, insisting she “be punished consistent with the Criminal Code of Canada” and says they criminalized her, put her in jail, defrauded her, and took part in a “conspiracy to use arbitrary and discriminatory policies to deny homeownership to the most vulnerable in our society”. She characterized their conduct as “rank indifference that borders on terrorism”. She alleges that she was “defamed, falsely persecuted, denied a defence or appeal, and imposed a penalty that makes her homeless”. She likens insurance policies to “vigilantism”. These claims are without any foundation and are a serious misrepresentation of the evidence presented in this case. They support my conclusion that, generally, Dr. Rogers is not a reliable narrator about events involving the insurance companies.
[20] In addition, Dr. Rogers was frank in admitting, in cross-examination, that she has a poor memory. She said, “I couldn’t tell you what I had for lunch”. She said that, without contemporaneous documents or notes, “my memory is not reliable”. In a letter to the Tribunal dated November 28, 2021, she said her memory “does not work, has not worked for the last 6 years”. She admitted she did not have a clear recollection of the information in her written statements, and cannot remember specific dates, or details of conversations from memory without notes.
[21] There are only a few issues where the reliability of Dr. Rogers’ evidence is determinative of my findings. Generally, where her evidence conflicted with testimony given by other witnesses or documentary evidence, I have preferred the other evidence. I identify these issues specifically below.
IV FACTUAL BACKGROUND
[22] The Respondents are insurance companies which sell conventional homeowners insurance to the public. After Canada legalized growing up to four cannabis plants in 2018, each of the Respondents developed policies relating to insurance for properties where cannabis is grown:
a. Family Insurance, Echelon Insurance, Intact Insurance, Mutual Fire Insurance, Peace Hills, and CNS will insure properties growing up to and including four cannabis plants. They will not underwrite insurance for properties growing more than four cannabis plants, even if it is for medical reasons or under a legal license. In this decision, I refer to these Respondents as the “ Group A Respondents ”.
b. BCAA will insure properties growing up to and including four cannabis plants. Its advisors may refer properties growing more than four plants to the underwriting department to determine whether BCAA may make an exception to offer insurance and, if so, on what conditions.
c. Aviva Insurance Company and Elite Insurance required any property where cannabis is grown to be referred to the underwriting department, with a full application, regardless of the number of plants.
[23] Dr. Rogers owns a property in a rural area of the province. Her primary residence is in a modular home on a cement foundation. The property includes an outbuilding that Dr. Rogers refers to as a “shed”. It is a decommissioned manufactured home, built in the late 1970s, about 12 feet wide and 55-60 feet deep. In this decision, I will adopt Dr. Rogers’ language and refer to this building as the shed .
[24] For reasons I explain below, I accept that Dr. Rogers has disabilities. In 2016, she was prescribed medical cannabis. That prescription has been renewed annually. On March 20, 2018, Health Canada issued Dr. Rogers a license to cultivate up to 49 cannabis plants indoors, under the Access to Cannabis for Medical Purposes Regulations. These regulations allow people who are authorized by their health care practitioner to register with Health Canada to produce a limited amount of cannabis for their own medical purposes. It is a condition of the license that Dr. Rogers comply with all relevant provincial and municipal laws. Health Canada also recommends certain safety and security measures, to reduce the risks of theft, mould, fire, and impacts on health. This license was renewed in 2019.
A. Decision to grow cannabis (2018)
[25] In late 2018, Dr. Rogers says she began her renovations to the shed to grow medical cannabis indoors. She renovated three rooms for the different stages of the process: a nursery, a flowering room for juveniles, and a third room for trimming, drying and fermenting. With one exception, Dr. Rogers did all the work to prepare the space for growing herself. She made modifications to the electrical system, ventilation, and lighting. In doing so, Dr. Rogers says she relied on direction from the Government of Canada about “safety and security considerations when producing cannabis for your own medical purposes”. I agree with the Respondents that many of the risks associated with growing cannabis were present in Dr. Rogers’ set up. I return to this below.
[26] It is unclear when exactly Dr. Rogers started to grow cannabis. In her affidavit, Dr. Rogers says she started plants in late 2019. However, she says that she was able to test her first plants in April 2019, to identify the best strain. This suggests that 2019 was a typo, and she started in late 2018. It seems that this was her first and only small crop of cannabis, though she continued growing until October 2019. For the purpose of this decision, I understand that she was growing cannabis in the shed from around the fall of 2018 until October 2019. Her intention was to grow up to the maximum amount of plants permitted by her licence: 49.
[27] Dr. Rogers says, and I accept, that she enjoyed growing her own cannabis. In addition to the medicinal benefits of the cannabis, she found that the act of growing supported her mental health, sense of purpose, and wellbeing.
B. Homeowners insurance is cancelled (September 2019)
[28] Since 2012, Dr. Rogers has worked with a broker at her local branch of Interior Savings Credit Union to maintain insurance for her property, which was a condition for her mortgage. Interior Savings is licensed as an insurance agency under the Financial Institutions Act. As an insurance agency, its role is to act as an intermediary between clients and the insurance providers. Among other things, it is required to make reasonable inquiries into risk and provide insurers with full and accurate information.
[29] Between 2013 and 2019, Dr. Rogers’ property was insured by home insurance purchased from CNS. During the relevant period, the annual cost of this insurance was $880. There is no dispute that Dr. Rogers paid her premiums in full and on time and has never filed a claim on any homeowners policy.
[30] On September 5, 2019, Dr. Rogers’ broker contacted her as part of an annual check in to ask about any material changes to her property. Dr. Rogers says that she explained that she had a prescription and license to grow medical cannabis and was growing it in the shed. Dr. Rogers also says that at this time she was considering operating an Airbnb on the property, and asked the broker whether there were any implications for her home insurance. At this point, Dr. Rogers says she was not operating the Airbnb; just considering it. The Airbnb is important because some of the Respondents will not insure properties with an Airbnb. In this decision, I accept that Dr. Rogers was not yet operating an Airbnb in 2019. However, importantly, her broker thought she was.
[31] The broker’s notes of her conversation with Dr. Rogers say:
Contacted client to discuss the upcoming renewal and she advised that she is now using one bedroom in her home for Air B&B and she is now operating a medical grow-op out of one of her outbuildings. Discussed these changes with [CNS] who advised that they will want off risk and we will need to look at remarketing preferably by renewal…
The broker testified, and I accept, that none of the insurance companies that she works with give Interior Savings the discretion or authority to bind coverage for properties where cannabis is grown, without approval from the insurance provider. Likewise, she says that operating an Airbnb is a risk that generally must be referred to an insurance provider.
[32] Dr. Rogers’ application to renew her insurance was flagged by CNS for review by an underwriter. The application was reviewed at the highest level of underwriting. On September 5, 2019, CNS advised the broker that CNS would not renew. CNS’s notes of the call indicate that the agent told the broker that CNS only allows the cultivation of up to four cannabis plants, beyond which it is “technically a commercial risk which she needs to remarket”.
[33] There is no dispute that CNS did not ask Dr. Rogers for more information about her property before making this decision. After a brief extension, it cancelled her home insurance effective October 5, 2019.
[34] Dr. Rogers says she did not receive CNS’s letter to her about the cancellation of her insurance. She says she only learned that CNS had cancelled her insurance when her mortgage holder wrote to her on September 26, 2019, to advise that it had received notice that her fire insurance was cancelled.
C. Attempts to insure property with cannabis cultivation (September – October 2019)
[35] After this, Dr. Rogers says that she and/or her broker reached out to the other Respondent companies to inquire whether they would offer insurance, but they each declined. The broker did not submit any applications to these companies on Dr. Rogers’ behalf, because she understood that an application would not be accepted. I return to my findings and the details of these calls below.
[36] As part of her efforts to find Dr. Rogers insurance, the broker also reached out to Specialty Program Group Canada o/a Cansure, Guardian Risk Managers, and Premier Marine Insurance. These companies are Managing General Agents, which contract with insurers to provide certain business functions and which have underwriting authority based on criteria set by the insurer. Each of these companies indicated they could not provide insurance. I dismissed Dr. Rogers’ complaints against these companies in an earlier decision: Rogers (No. 2).
[37] Finally, the broker reached out to an agent at Interior Savings’ commercial insurance division. The agent advised that they could look at the “grow-op” portion of the property, but not the home because it was not a commercial risk.
[38] In October 2019, Dr. Rogers contacted a broker at LMG Insurance to inquire about home insurance for her property where she was growing up to 50 cannabis plants. After collecting some information, LMG advised it could offer coverage. Dr. Rogers decided not to pursue this insurance coverage because of the estimated cost. Her evidence about the cost was somewhat inconsistent – at various points she said it was about $8,000 per year, or $4,000 per year plus $2,000 for mould abatement. In an email she wrote on November 15, 2019, she referred to a cost of $7,000 per year. For the purpose of this decision, I accept that this insurance was significantly more expensive than the conventional homeowners insurance Dr. Rogers had previously purchased. In this complaint, Dr. Rogers also submitted a blank application form from Strategic Underwriting Managers Inc., a company which will insure residential properties where cannabis is grown. She never applied for this insurance.
[39] Ultimately, Dr. Rogers was unable to purchase insurance for her property for the same or similar price she had previously paid, while she was cultivating more than four cannabis plants.
D. Securing insurance without cannabis cultivation (October – November 2019)
[40] In October 2019, Dr. Rogers stopped growing medical cannabis to obtain home insurance. She cut down all the plants, but says she did not fully dismantle the grow rooms until 2023. She alleges that, after this, she was denied insurance because she was considered a “former grow op” and was required to produce a mould abatement certificate. She has never done any mould testing in the shed. There is no evidence in this proceeding that any of the Respondents denied Dr. Rogers insurance because she was a former grow op and/or required her to obtain a mould abatement certificate. To the extent this is part of her complaint allegations, it is dismissed.
[41] The broker made note of a message from Dr. Rogers on November 26, 2019:
Client has left a message advising that she is no longer growing medicinal marijuana and is no longer operating an Air B&B. She would like to place coverage with us again because she cannot find coverage anywhere for as cheap as what we were originally offering.
The broker reached out to Cansure on Dr. Rogers’ behalf, disclosing that she had recently dismantled a medical marijuana grow op. Cansure responded that they would not offer coverage. The broker says she reached out to Cansure, because it is the company it contacts for “nonstandard or ‘hard to place’ risks”. She says that, in her experience, “if Cansure is unable or unwilling to provide insurance coverage, it is unlikely that any of the other insurance providers that Interior Savings works with will provide coverage.” She called to tell Dr. Rogers that no companies would be able to insure her property, but Dr. Rogers never returned the call.
[42] In the meantime, Dr. Rogers reached out to a different broker. Through this new broker Dr. Rogers was approved for, and purchased, homeowners comprehensive insurance from Intact Insurance in November 2019. The annual cost of the policy was $886. Under the policy, Dr. Rogers was able to grow up to four cannabis plants on her property.
[43] Dr. Rogers says that, because she cannot obtain low-cost home insurance while growing up to 49 cannabis plants on her property, her health and wellbeing have declined.
[44] On November 22, 2019, Dr. Rogers filed this human rights complaint against CNS and the broker, Interior Savings. On June 8, 2020, she filed a second complaint against 12 other companies. On December 9, 2022, the two complaints were joined into this single complaint.
V THE COMPLAINANT’S CASE
[45] In this complaint, Dr. Rogers bears the burden of proving:
a. she has disabilities protected under s. 8 of the Code;
b. for each Respondent, she was adversely impacted in a service that the Respondent customarily offered to the public; and
c. her disabilities were a factor in the adverse impact.
Moore v. British Columbia (Education), 2012 SCC 61 at para. 33
Many cases refer to this as “prima facie discrimination”. However, for reasons I have explained elsewhere, this Tribunal refers to these factors as the elements of the complainant’s case: Vik v. Finamore (No. 2), 2018 BCHRT 9 at paras. 48-50.
[46] To decide whether Dr. Rogers has proven the elements of her complaint, I must make findings of fact on a balance of probabilities. The law operates as a “binary system”: a material fact “either happened or it did not”: In re B (Children), [2008] 3 W.L.R. 1, [2008] UKHL 35 at para. 2; cited in F.H. v. McDougall, 2008 SCC 53 at para. 44. Any doubt is resolved based on which party has the burden of proof.
[47] I begin with the issue of Dr. Rogers’ disabilities.
A. Disabilities and treatment with cannabis
[48] The burden is on Dr. Rogers to prove that she has disabilities protected by the Code. She is not required to submit expert evidence to prove this: Gichuru v. Purewal and another, 2017 BCHRT 19 at para. 275; Miscisco v. Small , 2001 BCAA 576 at para. 2. I am entitled to consider all the evidence, including Dr. Rogers’ evidence about her symptoms and treatment: Wells v. Langley Senior Resources Society, 2018 BCHRT 59 at para. 162; Gichuru at para. 275.
[49] Dr. Rogers says that she is permanently mentally and physically disabled by “permanent and severe untreated PTSD with neurological involvement (Autonomic Dysregulation)”, anxiety and depression, and “adjustment disorder”. She submitted documents showing that she has been approved for Canada Pension Plan disability benefits, beginning in 2017. In addition to her own evidence about her disabilities, she called Dr. Erin Nichol, a family doctor who prescribed her medical cannabis. In a letter dated January 23, 2023, Dr. Nichol said that Dr. Rogers “struggles with anxiety, depression and severe PTSD”.
[50] The Respondents argue that Dr. Rogers has not proven she has a disability. They argue that, while expert medical evidence is “not absolutely necessary” in every case to establish a disability, it “may be an important part of the evidentiary burden on a complainant”: Cummings v. Nenan Dane Zaa Deh Zona Family Services Society, 2015 BCHRT 116 at paras. 229-230. They submit that, because Dr. Rogers’ evidence is so unreliable, this is a case where the Tribunal should not rely on her self-assessment and self-reporting without medical evidence to corroborate her claims of disability. They argue that Dr. Nichol’s evidence about Dr. Rogers’ diagnoses is inadmissible hearsay because she did not directly diagnose Dr. Rogers.
[51] Considering all the evidence before me, I am persuaded that Dr. Rogers has disabilities protected by the Code.
[52] Above I have accepted that some of Dr. Rogers’ evidence was unreliable. This was particularly true of her evidence of details like dates or money, and of evidence tainted by animus towards the insurance companies. However, I do not find that this unreliability has undermined all of Dr. Rogers’ evidence about her disabilities – much of which was unchallenged in cross-examination.
[53] Dr. Rogers gave evidence that she worked for 22 years as a licensed nurse until 2014 when she went on sick leave due to workplace stress. She has not returned to work since. She says that, in the years that followed, she was treated by several doctors and several different medications. She was eventually approved for long term disability insurance. In 2019, she was approved for Canada Pension Plan disability benefits, which were backdated to June 2017. None of this was challenged or shaken in cross-examination. Dr. Rogers gave evidence about physical symptoms that she experiences, which include sensitivity to light, a stutter that is exacerbated by stress (which I also observed in the hearing), and migraines. She describes being easily startled and on “high alert at all times”, with a “fight or flight response” when she feels threatened. She testified that her cognition and memory are impaired, a fact that the Respondents have relied on respecting her credibility.
[54] In November 2016, it is undisputed that Dr. Rogers was referred by her doctor to the Greenleaf Medical Clinic. In December 2016, Dr. Rogers was prescribed medicinal cannabis. This prescription was renewed annually thereafter. Over time, the dosage increased from two grams per day to ten grams per day during the period of this complaint.
[55] Regarding Dr. Nichol’s evidence, I accept that she did not directly diagnose Dr. Rogers with anxiety, depression, and PTSD. I agree that those diagnoses are hearsay, in part based on information from Dr. Rogers’ other treating physician(s) and in part based on information provided by Dr. Rogers. However, the Tribunal has discretion to admit hearsay evidence when it is necessary and appropriate: Code, s. 27.2. In this case, I am satisfied that Dr. Nichol’s evidence about Dr. Rogers’ disability was necessary and appropriate. I can fairly address the Respondents’ concerns as a matter of the weight I give to the evidence.
[56] In my view, Dr. Nichol’s evidence is necessary as the only expert evidence available to support Dr. Rogers’ claim of disability. Dr. Rogers initially sought to admit several medical reports and records from various doctors. The Respondents objected, on the basis that these documents contained expert opinion evidence. I agreed, ruling that I would only admit these documents if Dr. Rogers submitted a statement of qualifications for the doctor and made the doctor available for cross-examination on request. Ultimately, Dr. Rogers, as a self-represented litigant, was only able to arrange for Dr. Nichol to attend the hearing.
[57] Further, and more importantly, I am satisfied that the evidence is appropriate. Dr. Nichol is a licensed physician, with a specialty in cannabinoid medicine. She treated Dr. Rogers for six years, prescribing her medication throughout that period. Dr. Nichol testified that, in her role at the Greenleaf Medical Clinic, she relies primarily on information and diagnoses from referring doctors. In addition, like any doctor, she relies on information from the patient, particularly about their mental health and the effects of medication. Based on this information, she exercises her professional judgment to prescribe cannabis as a treatment. Though Dr. Nichol may not have directly diagnosed Dr. Rogers’ medical conditions, I place some weight on her decision to continue to treat them over a period of six years.
[58] Based on the whole of the evidence before me, it is difficult to precisely define Dr. Rogers’ disabilities. It seems likely they are a combination of mental health disabilities like anxiety and PTSD, and related physical symptoms. Though I have some hesitancy about the correct diagnoses, I am satisfied that Dr. Rogers has some mental health conditions that are serious and persistent and create barriers to her full participation in certain areas of social life: Morris v. BC Rail , 2003 BCHRT 14 at para. 214; Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) , 2000 SCC 27 at para. 82. In this case, this is sufficient to engage the Code’s protection against discrimination based on disability.
[59] I am also satisfied that, during the relevant period, Dr. Rogers was prescribed and treated these conditions with medical cannabis. She says that this was the only treatment that helped to “pause” her racing brain and alleviate some of her physical symptoms.
B. The Respondents’ services
[60] Section 8 of the Code prohibits discrimination in accommodations, services, and facilities customarily available to the public. It is interpreted expansively to “breathe life, and generously so” into the provision, and advance the Code’s broad public purposes: Gould v. Yukon Order of Pioneers , [1996] 1 SCR 571; British Columbia Human Rights Tribunal v. Schrenk , 2017 SCC 61 at para. 31.
[61] Defining the scope of a service can be determinative of a human rights complaint. The Tribunal must be cautious not to define a service too narrowly, which risks obscuring, and perpetuating, barriers which impede equal access to public life: Moore at paras. 27–31. At the same time, however, it is the service provider and not the Human Rights Tribunal that determines the services they will provide to the public. Adjudicators do not have “licence to ignore the words of the [ Code ] in order to prevent discrimination wherever it is found”: University of British Columbia v. Berg , [1993] 2 SCR 353 at p. 371.
[62] The parties disagree about how to define the service the Respondents provide to the public. Dr. Rogers describes the service as “general home insurance”. The Respondents argue that the service is more narrow and defined by the scope of risk they are each willing to tolerate. For the following reasons, I agree with Dr. Rogers.
[63] In support of their argument, the Respondents rely on Vitcoe v. Dominion Life Insurance Co., 1864 CanLII 5015 (BC Board of Inquiry). In Vitcoe, the insurance company denied the complainant disability insurance because it determined that her medical conditions posed an unacceptable risk. The Board of Inquiry relied on Gay Alliance Toward Equality v. Vancouver Sun (1979), 2 SCR 435 to conclude that the insurance company was entitled to restrict the service which it makes available based on its assessment of risk. As a result, human rights protections were not engaged and the complaint was dismissed.
[64] Respectfully, the reasoning in Vitcoe is inconsistent with current principles in human rights law and I decline to follow that approach.
[65] To begin, the Board of Inquiry relied heavily on Gay Alliance. In that case, the Vancouver Sun had refused to sell advertising to the Gay Alliance Toward Equality, because it did not support the organization’s aims to “establish recognition for the thesis that homosexuality is a valid and legitimate form of human sexual and emotional expression in no way harmful to society or the individual and completely on par with heterosexuality”. In reasons written by Justice Martland, the majority of the Supreme Court of Canada held that the Sun was entitled to define its advertising services based on the content of the advertising it would accept. Because the Gay Alliance’s message was inconsistent with the Sun’s position on gay rights, it was not seeking a service which the Sun provided and therefore human rights legislation did not apply.
[66] Fifteen years later, in Berg, the Supreme Court of Canada resiled from Gay Alliance’s narrow interpretation of human rights legislation. In doing so, Chief Justice Lamer observed:
What is most often criticized about the decision in Gay Alliance is the fact that the limiting words of the Act were interpreted to allow the discriminatory exercise of the newspaper’s discretion, even thought the Act had prohibited discrimination at the “threshold” to the service or facility. That is, the newspaper could not discriminate in soliciting advertisements, but could discriminate in deciding which advertisements it would accept. [para. 41]
[67] The Chief Justice agreed with this critique, explaining that Justice Martland’s reasoning in Gay Alliance “leads to an artificial and unacceptable distinction between the rights a person has at the threshold of admission to an accommodation, service or facility, and the rights he or she has once admitted to the accommodation, service or facility”. He cited Insurance Corporation of British Columbia v. Heerspink , [1982] 2 SCR 145. In Heerspink, ICBC cancelled the complainant’s property insurance after it learned that Mr. Heerspink had been charged with trafficking marijuana. The basis for the cancellation was “moral hazard”, which elevated the risk of loss beyond what ICBC was willing to accept. The dissent, written by Justice Martland, found that ICBC had not denied the complainant a service customarily available to the public, but was instead simply exercising its contractual rights. The majority, written by Chief Justice Lamer, rejected this reasoning, in large part because it insulated the insurance company from human rights scrutiny in a manner the legislature could not have intended: p. 159.
[68] The weight of the Supreme Court’s jurisprudence since Gay Alliance has favoured a broad, purposive interpretation and application of human rights law: Schrenk at para. 31. Courts and tribunals must now “favour interpretations that align with the purposes of human rights law like the Code rather than adopt narrow technical constructions that would frustrate those purposes”: Schrenk at para. 31. This approach was manifest in the Court’s analysis of the service at issue in Moore.
[69] In Moore, the school district closed a program that provided intensive services and individualized help to students with severe learning disabilities. As a result, the district was unable to offer Jeffrey Moore, a child with dyslexia, sufficient remediation supports. An issue in the case was how to define the “service” provided by the school district. The majority of the BC Court of Appeal defined the service as “special education” and concluded that, because Jeffrey was treated the same as other students with disabilities, he was not denied this service. The Supreme Court of Canada rejected this narrow approach. It found that the service was education generally. The Court adopted the dissenting view of Rowles JA from the Court of Appeal, that:
It is accepted that students with disabilities require accommodation of their differences in order to benefit from educational services. Jeffrey is seeking accommodation, in the form of special education through intensive remediation, to enable him equal access to the “mainstream” benefit of education available to all… In Jeffrey’s case, the specific accommodation sought is analogous to the interpreters in Eldridge: it is not an extra “ancillary” service, but rather the manner by which meaningful access to the provided benefit can be achieved . Without such special education, the disabled simply cannot receive equal benefit from the underlying service of public education. [Emphasis added by Supreme Court of Canada at para. 28]
[70] Justice Abella explained that defining the service narrowly as “special education” would immunize the District from having to justify its decisions which adversely impact students with disabilities and, in doing so, “[risk] perpetrating the very disadvantage and exclusion from mainstream society the Code is intended to remedy”: para. 31, quoting Rowles JA. In my view, the same risks are present if I were to accept the Respondents’ narrow definition of service in this case.
[71] In cases alleging discrimination in insurance or benefits policies, the service is the insurance or benefit at issue. For example, in Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 SCR 566, the Court considered whether a disability benefits plan was discriminatory in circumstances where it did not offer benefits to people with mental disabilities. The service in that case was the “disability benefit”, and the exclusion from eligibility was the issue in the complaint.
[72] Similarly, in Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 SCR 321, the insurance company charged higher car insurance rates to young, single, male drivers. The company conceded that this amounted to differential treatment based on sex, age, and marital status but argued that the distinction was justified based on its assessment of risk. The case was analysed within the framework for bona fide reasonable justification. The company presented very similar evidence to what is before me to explain the nature and purposes of insurance, and its assessment of the heightened risk presented by young, single, male drivers. The majority of the Supreme Court of Canada found that this evidence justified the distinction and, as a result, there was no discrimination. If the Court in Zurich Insurance had applied the approach proposed by the Respondents here, the analysis would not have permitted any scrutiny of the insurance company’s decision making. Rather, the case would have been dismissed because the insurance company did not offer young, male, single drivers the “service” of insurance at the same rate it offered to other insureds. This approach is untenable.
[73] I accept that insurance companies are entitled to define the risks they are willing to accept, subject to their duty not to discriminate. However, I do not accept that this risk assessment is determinative of the service which the company is offering to the public. Such an approach would immunize insurance companies from any obligation to justify risk assessments that adversely impact people based on personal characteristics protected by the Code. This is inconsistent with a purposive interpretation of s. 8. An insurance company is properly required to justify risk assessments that have Code- related adverse impacts. Ultimately, the result will be the same. So long as the company can prove that its assessment was made for a valid purpose, in good faith, and there is no practical alternative, then the policy will not be discriminatory .
[74] I agree with Dr. Rogers that the service the Respondents offer to the public is homeowners insurance. This is the service she was seeking and alleges she was denied.
C. Denial of service based on disability
[75] Next, Dr. Rogers must prove that (1) each of the Respondents denied her service, and (2) her disabilities were a factor in the denial.
[76] There is no evidence that any of the Respondents directly denied Dr. Rogers insurance because of her disabilities. Rather, this complaint is about indirect discrimination, where an otherwise neutral policy may adversely impact someone because of their protected characteristics. Here, Dr. Rogers says that the adverse impacts arose from the Respondents’ policies respecting cannabis cultivation, which she says is connected to her disabilities. The Respondents argue that Dr. Rogers’ cannabis cultivation cannot be a proxy for her disabilities. I begin, then, with the nature of the connection that Dr. Rogers must prove in this case. I then go on to make my findings about whether Dr. Rogers has proven that each of the Respondents denied her insurance for any reason related to her disability.
1. Connection to disability: general principles
[77] There is some dispute about the connection that Dr. Rogers must prove between a denial of services and her disabilities. The Supreme Court of Canada has addressed the nature of this connection in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 [ Bombardier ] and Stewart v. Elk Valley Coal Corp., 2017 SCC 30 [ Elk Valley ] . The disability must be a factor in the denial of service: Bombardier at para. 52; Elk Valley at para. 46. It does not have to be a causal or close connection: Bombardier para. 51. It does not require proof of arbitrariness or stereotyping: Elk Valley at para. 45. The disability does not have to be a “significant” or “material” factor: Elk Valley at para. 46.
[78] There is no dispute that, for all the Respondents, Dr. Rogers’ intention to grow up to 49 cannabis plants was considered a material risk. Six of the Respondents will not insure properties growing more than four cannabis plants. Three of them may consider underwriting the risk based on a full application and assessment of the property. The issue at this stage of the analysis is whether the impacts of the Respondents’ policies relating to the cultivation of up to 49 cannabis plants were connected to Dr. Rogers’ disability.
[79] I accept that Dr. Rogers used cannabis to treat her disability-related symptoms. This is supported by her testimony and the testimony of Dr. Nichols, who has been prescribing her cannabis for several years. Health Canada issued her a license to grow up to 49 cannabis plants for her personal use to treat her disabilities. In my view, this evidence is sufficient to connect Dr. Rogers’ cannabis cultivation with her disabilities for the purpose of triggering the protection of the Code.
[80] I turn to the Respondents’ arguments about why they say Dr. Rogers has not proven a connection to her disabilities.
[81] First, the Respondents argue that Dr. Rogers must prove that she needs to grow more than four cannabis plants in her home because of her disabilities. In my view, this sets too high a bar. I do not agree with the Respondents that Dr. Rogers must prove that cannabis was the most effective treatment, or there were no other medications she could have used. I also do not accept that Dr. Rogers must prove that she did not have any other way to access her medication. Dr. Rogers is entitled to choose her own medical treatment: Carter v. Canada (Attorney General), 2015 SCC 5 at para. 67. Given her prescription and Health Canada license to grow, part of this choice includes the choice to grow her own medicine.
[82] My decision is consistent with other cases in which the Tribunal has articulated the connection very simply: “the growing of marijuana is related to [the complainant’s] disabilities as any medication would be related to a disease that requires treatment”: Buchanan v. Spelchan, 2008 147 at para. 16. For example, in James and Moynan v. City of Salmon Arm, 2009 BCHRT 285, the Tribunal found that the City discriminated against the complainants when it enforced a bylaw which prohibited the cultivation of “illicit marijhuana”, in circumstances where the complainants were growing medical cannabis under a legal license: see especially paras. 150-153.
[83] It is also consistent with how the Tribunal approaches the connection in other cases. For example, a person with disabilities seeking an exception to no-pet rules in housing because they need a support animal does not need to prove there are no other medical options to treat their disabilities. It is sufficient for them to prove they derive a disability-related benefit from the animal or, put another way, that not having the animal would have a negative effect on them because of their disabilities: see e.g. Daughter by Parent v. The Owners, A Strata, 2020 BCHRT 105.
[84] Second, the Respondents argue that Dr. Rogers’ decision to grow cannabis was a financial one, based on her limited income and assessment that growing offered more affordable access. As such, they argue that the decision is not based on her disabilities, but based on her socioeconomic status, which is not a characteristic protected under the Code. Respectfully, I disagree.
[85] This approach would require me to treat Dr. Rogers as a “number of disembodied and distinct” characteristics: Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 at paras. 463. This is inconsistent with the Tribunal’s intersectional approach to discrimination: Radek at paras. 463-465; Hale v. University of British Columbia Okanagan (No. 5), 2023 BCHRT 121 at para. 216. Rather, I consider Dr. Rogers as an integrated person, whose finances may be relevant to how she is able to meet her disability-related needs. A low-income person with disabilities may have different needs than a wealthy person with disabilities. In any event, as I have said, it is Dr. Rogers’ prerogative to legally grow her own medicine. Her non-disability related reasons are not, in my view, a necessary part of the human rights analysis.
[86] Third, Echelon, Aviva, and Elite argue that Dr. Rogers has not proven a connection to her disabilities because the relevant considerations arose from the characteristics of her property and not her as a person. They argue that this distinguishes the circumstances from other insurance-related human rights cases, which considered risks related to the protected characteristics of the insured person: e.g. Vitcoe (mental disability in life insurance); Zurich Insurance (sex, age, and marital status in car insurance); and Olrenshaw v . Western Assurance Company , 2013 HRTO 280 (age in car insurance). They argue:
The complainant is asking the Tribunal to find that where a property has a characteristic because of an individual’s unique personal circumstances, that property characteristic ergo becomes protected. In other words, in relation to property insurance, the nexus is not between the policy and the individual, but between the policy and the property.
[87] Respectfully, I do not accept this argument. Human rights law rests on an “effects-based model which critically examines systems, structures, and their impact on disadvantaged groups”: Fraser v. Canada (Attorney General), 2020 SCC 28 at para. 31. It would be unduly restrictive to exclude from its scope circumstances where a person’s protected characteristics are tied to features of their property. For example, a policy that refused to insure homes with ramps would negatively impact wheelchair users in a manner connected to their disabilities. The focus of the analysis remains on whether the policy or practice at issue adversely impacts a person in connection with their protected characteristics, regardless of whether it targets the person directly or indirectly.
[88] Fourth, some of the Respondents argue that Dr. Rogers has not proven the elements of her complaint because neither she nor her broker disclosed that she had a disability and was requesting an accommodation. For reasons that I have explained elsewhere, the Respondents’ knowledge of Dr. Rogers’ disability is not an issue that I consider as part of the complainant’s case: Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at paras. 366-373. Rather, the issue is relevant to the accommodation analysis. Given my findings in this decision, the issue does not arise at all.
[89] In sum, I agree with the Respondents that the evidence does not allow me to conclude that Dr. Rogers could only access medical cannabis by growing it herself. However, in my view, I do not need to. I am satisfied that Dr. Rogers’ decision to grow her own medicine was connected to her disabilities. Her disabilities are therefore a factor in any insurance company’s decision to deny coverage because of the amount of cannabis she was growing.
2. Denial of service: Canadian Northern Shield
[90] There is no dispute that CNS declined to renew Dr. Rogers’ insurance policy at least in part because it received information that she was growing up to 49 cannabis plants. This is sufficient to establish that CNS denied Dr. Rogers its services and her disability was a factor in that denial. Dr. Rogers has proven the elements of her complaint against CNS. I will consider its justification defence below.
3. Denial of service: the other Respondents
[91] Aside from CNS, Dr. Rogers did not submit an application for insurance to any of the Respondent insurance companies. The Respondents argue this is fatal to her claim. In my view, this depends on what Dr. Rogers or her broker reasonably understood about the prospect that an application would be successful.
[92] The Respondents cite cases where the Tribunal has dismissed human rights complaints because the complainant did not apply for the job or opportunity at issue: Miller v. The Union of British Columbia Performers, 2020 BCHRT 133, upheld in 2022 BCAA 358; Bassi v. Western Union Business Solutions and another, 2017 BCHRT 170; and Lavigne v. Subway, 100 Mile House, 1999 BCHRT 60. The common thread in these cases is that the evidence did not support an assumption that the complainant would not have been successful if they had applied.
[93] Miller was about a writing workshop which advertised a preference for Indigenous, LGBTQ+ and “diverse” participants. The complainant, a straight non-Indigenous woman, did not apply for the workshop, and instead filed a human rights complaint alleging that the preference was discriminatory. The Tribunal dismissed the complaint because the complainant did not apply for the workshop: para. 13. The undisputed evidence was that there was room in the workshop for the complainant and that, had she applied, she would have been accepted. In Bassi and Lavigne, the complainants complained that they were not hired for jobs they did not apply for. Their reasons for not applying differed, but there was no evidence that the reason that they did not apply was because they had been told in advance they would not be successful or that they would have been denied the jobs if they had applied.
[94] These circumstances are distinct from cases where the Tribunal has found it was not necessary for the complainant to subject themselves to certain rejection. For example, in Bray v. Shearwater Marine and another, 2011 BCHRT 64, the respondents told the complainant’s husband that they were “neither welcome nor will be served in any of Shearwater’s business premises”. The Tribunal found it was not necessary for the complainant to subject herself to an actual denial of services to establish an adverse impact: para. 64. Similarly, in Kovacs v. City of Maple Ridge (No. 2), 2023 BCHRT 158, the Tribunal found it was unnecessary for a blind complainant to put herself in an unsafe situation trying to navigate through an inaccessible space: para. 175.
[95] In this case, I am satisfied that Dr. Rogers has proven a denial of service respecting the Respondents who (1) had accurate information about her property, (2) told Dr. Rogers or her broker they would not offer coverage, and (3) had policies which made Dr. Rogers’ property ineligible for coverage. In these circumstances, Dr. Rogers and/or her broker reasonably and correctly understood that an application for insurance would be unsuccessful. It would be unduly technical to require Dr. Rogers or the broker to go on to make a superfluous application just to have it officially denied.
[96] I turn now to my findings about each of the Respondents.
i. Echelon Insurance
[97] On September 17, 2019, the broker emailed Echelon to inquire whether Echelon would consider insuring Dr. Rogers’ property. The broker says that she typically looks to Echelon for “hard to place” insurance. For that reason, Echelon was one of the first companies she contacted.
[98] The broker explained that Dr. Rogers “has a licensed grow-op in a separate building and is now operating an Air B&B in her home”. In her affidavit, the broker explained that “it is understood in the insurance industry that a ‘licensed’ grow-op means that Health Canada had provided legal authorization to the license-holder to grow marijuana for personal medical purposes”. None of the Respondents have taken issue with this assertion or offered a different interpretation of “licenced grow op”. I accept the broker’s explanation about why she used that term and how it was likely interpreted by each of the Respondents she spoke to.
[99] Echelon’s underwriter responded: “this does not fall within the underwriting guidelines of our hard to place program”. The broker did not submit an application for insurance on Dr. Rogers’ behalf.
[100] In her affidavit, Echelon’s Senior Underwriter confirmed that Echelon does not underwrite any homeowners policies for properties growing more than four cannabis plants.
[101] Based on this evidence, I am satisfied that Echelon had accurate information about Dr. Rogers’ cannabis cultivation (that she was growing more than four plants under a medical license), told the broker they would not offer coverage, and had a policy not to insure properties growing more than four cannabis plants. I am satisfied, on a balance of probabilities, that Echelon denied Dr. Rogers a service and her disabilities were a factor. I return to Echelon’s justification for its policy below.
ii. Family Insurance, Mutual Fire, Intact Insurance, and Peace Hills
[102] The broker testified that, on September 17 and 26, she called her contacts at these companies to ask whether they would provide home insurance to a client with a licensed medical marijuana grow-op in a separate outbuilding, who was operating an Airbnb. These companies advised they would not offer insurance, and did not request further details. These calls were in the nature of a general inquiry and the broker did not specifically identify Dr. Rogers as the client. The broker did not submit any applications on Dr. Rogers’ behalf to these companies.
[103] In her evidence, the broker was frank in acknowledging that she could not remember the details of these conversations. All she could remember was that she was exhausted and “grasping at straws”, trying to find an option for Dr. Rogers. She relied on her notes of these calls, which she logged in Interior Savings’ broker management system.
[104] The broker testified that her practice was to log information about a client’s file into this system either contemporaneously or shortly after the activity. In the case of phone calls, she typically takes notes contemporaneously during the call or transposes her written notes into the system as soon as possible afterward, at least on the same day. Her relevant notes are:
a. September 17, 2019, 4:48 pm: “TRIED SRI, PREMIER, FAMILY, ECHELON, [MUTUAL FIRE INSURANCE], INTACT AND ELITE SO FAR. ALL COMPANIES HAVE DECLINED…”
b. September 26, 2019, 2:49 pm: “PEACEHILLS, GUARDIAN AND AVIVA HAVE DECLINED AS WELL”
None of the Respondent companies have a record of these calls, though that is not necessarily unusual because the calls were general inquiries that did not name the broker’s client.
[105] Peace Hills argues that Dr. Rogers has not proven that the broker contacted its office. It argues that the broker’s log note is lacking key information and is inherently unreliable. It points out that, aside from the note, the broker’s evidence in this proceeding was based on her assumptions about what she “would have” done rather than an independent recollection. In cross-examination, the broker wrongly identified the Peace Hills underwriter in 2019. While she claimed to have contacted “all my insurance companies”, the evidence suggests that there was at least one company she did not contact. Finally, in cross-examination, the broker agreed with Dr. Rogers that she had contacted ten specific insurance companies. Dr. Rogers did not ask her about Peace Hills.
[106] On balance, I am persuaded that the broker’s notes are an accurate reflection of her efforts to find insurance for Dr. Rogers. She kept the notes in the ordinary course of her business and, though they may not have been made contemporaneously, her evidence is that they would have been made on the same day as her calls. The notes are consistent with her evidence, which I accept, that she was working hard to find coverage for Dr. Rogers and reaching out to her industry contacts. Though I acknowledge (as did she) the weaknesses in her memory, in my view the notes themselves are sufficiently reliable to support a finding that the broker made an inquiry with Peace Hills on Dr. Rogers’ behalf.
[107] In addition to the broker’s contact, Dr. Rogers says that she called Peace Hills “within a few weeks” of learning that CNS had declined to renew her insurance. She says she explained that she had a prescription for medical marijuana to treat her PTSD. In cross-examination, Dr. Rogers admitted she was not sure whether she ever contacted Peace Hills, or whether she contacted a different insurer, called Hillside Insurance. She confirmed she had contacted a company with a physical office in Kamloops. However, Peace Hills does not have an office in Kamloops. She conceded that it is possible she never called Peace Hills, and may have been thinking of a street in Kamloops called Hillside Drive, with several insurance companies on it. On balance, I am not persuaded that Dr. Rogers ever contacted Peace Hills directly. However, this does not matter given my finding that the broker contacted Peace Hills.
[108] Family Insurance, Mutual Fire Insurance, Intact Insurance, and Peace Hills have submitted evidence that they do not insure properties where more than four cannabis plants are grown, including for medical purposes. I am satisfied that the broker told each of them that Dr. Rogers was growing up to 49 or 50 cannabis plants under a legal licence and this was at least one reason they told the broker they could not offer coverage. In short, these Respondents had accurate information about her cannabis cultivation, told the broker they would not offer coverage, and had policies that made Dr. Rogers’ property ineligible for coverage because of the cannabis cultivation. This is sufficient to prove the elements of Dr. Rogers’ case.
[109] In reaching this conclusion, I acknowledge that there may have been other reasons that the companies would have denied coverage (in particular, the Airbnb and/or the wood-burning stove). However, it is sufficient if the cannabis cultivation was one factor and, based on the evidence before me, I find it more likely than not was a factor. I return to their justification defence below.
iii. Elite Insurance and Aviva Insurance
[110] I reach a different conclusion about Elite Insurance and Aviva Insurance.
[111] Based on the broker’s notes set out above, I am satisfied that she also phoned Elite and Aviva to ask whether they would provide home insurance to a client with a licensed medical marijuana grow-op in a separate outbuilding and an Airbnb. These companies advised they would not offer insurance, and did not request further details. This is sufficient to prove a denial of service in this case.
[112] However, unlike the Group A Respondents, Elite and Aviva do not have a policy to decline insurance for properties where more than four cannabis plants are grown. Rather, those risks must be referred to underwriting for consideration, based on a full application. This suggests that the cannabis cultivation may not have been a reason that Elite and Aviva indicated they would deny coverage.
[113] At the same time, there were other reasons that Elite and Aviva would have automatically declined coverage for Dr. Rogers’ property. Aviva does not insure manufactured and/or modular homes. Its evidence is that it would have considered Dr. Rogers’ shed to fall in this category and automatically declined coverage on that basis. Similarly, Elite’s policies indicate it would have automatically declined coverage because the primary source of heating in the shed was by a wood stove that was not WETT-certified.
[114] Dr. Rogers argues that other insurers, including Elite and Aviva, were essentially just enforcing CNS’s decision not to renew coverage. As I understand this argument, it is that CNS’s decision was a reason – if not the reason – some of the other companies also denied her coverage. Respectfully, the evidence does not support this finding. The Respondents’ evidence, including from their insurance expert, was that the significance of a gap in coverage or another insurer’s decision not to renew or insure a property depended on the reasons. Insurers may have different risk appetites, and so one insurer’s decision to get off risk may not be relevant to a second insurer’s decision. In this case, the evidence before me is that each Respondent had and applied their own policies respecting insurance, apart from CNS’s decision not to renew.
[115] On balance, I am not satisfied that Dr. Rogers’ cannabis cultivation was a factor in Aviva or Elite’s decision not to offer her insurance. While it would have been a relevant, material risk, the evidence before me is that it would not trigger an automatic declination whereas other features of the property would. The complaint is dismissed against Elite and Aviva.
iv. BCAA
[116] There is no dispute that Dr. Rogers contacted BCAA to inquire about insurance. However, the timing of her inquiries, and what was said, is contested. For the following reasons, I prefer BCAA’s evidence.
[117] Dr. Rogers’ evidence about her interactions with BCAA was somewhat inconsistent. In one sworn statement, dated May 30, 2020, she does not mention contacting BCAA at all. In an affidavit sworn three years later, she says that she contacted BCAA in or around October or November 2019. She says that BCAA denied coverage “despite my explaining that I have a license, I have a prescription, and that the Medical Marijuana treats my PTSD”. In cross-examination, she conceded that she was not sure about when she contacted BCAA. She also agreed that her evidence about her phone calls with BCAA was based on a presumption of what she would have said, rather than an actual recollection or record of what was discussed.
[118] BCAA’s evidence about Dr. Rogers’ inquiries was based mostly on contemporaneous notes made by its insurance advisors in the regular course of their duties. Those notes indicate that Dr. Rogers called twice on May 30, 2020. At this point, she was insured by Intact and no longer cultivating cannabis in the shed.
[119] The agent’s notes of the first call are:
Insured said home is manufactured home. Went through criteria and she said it fits in deregistered home. Gave quote and advised if she wants to proceed it would be best to send photos and we will check with U/W to make sure it is insured properly.
Shortly after that first call, BCAA emailed Dr. Rogers a quote for insurance. The quote did not refer to cannabis.
[120] Later the same morning, Dr. Rogers phoned again and talked to a different agent. The notes of this second call are:
Lorelie called to find out… if she would be covered if she grew cannabis in her shed on her property – advised she would be covered if she follow the legislation and no more than 4 plants and used for personal use [as written]
[121] In her affidavit, this agent explained that she did not have a specific recollection of this conversation. However, she said that she is “absolutely certain” she would have noted any information that Dr. Rogers provided about “medical marijuana, a license to grow medical marijuana, disability, accommodation, or anything of that nature”. The fact that this information is absent from her note means, she says, that Dr. Rogers did not mention it. The agent further explains that if Dr. Rogers had mentioned any of these things, she would have referred the matter to underwriting for consideration, in accordance with BCAA’s policies. This evidence was not challenged in cross-examination.
[122] I prefer BCAA’s evidence about these calls over Dr. Rogers’. Again, I find the agents’ notes to be the most reliable record. Based on this evidence, I am not satisfied that Dr. Rogers told BCAA that she was asking about growing cannabis with a medical licence. In this circumstance, it did not have accurate information about her inquiry and did not indicate that her application would be unsuccessful because she was growing more than four plants for medical use. In this situation, any assumption that her application would be unsuccessful was not reasonable or correct. Given that Dr. Rogers never applied for insurance from BCAA, I am not satisfied that it denied her a service. Her complaint against BCAA is dismissed.
D. Complainant’s case: conclusion
[123] I am satisfied that Dr. Rogers has proven the elements of her complaint against the Group A Respondents: CNS, Echelon, Family Insurance, Mutual Fire Insurance, Intact Insurance, and Peace Hills. The burden in the analysis now shifts to these Respondents to justify the disability-related adverse impacts of their policies under the legal framework for bona fide reasonable justification.
[124] I am not satisfied that Dr. Rogers has proven the elements of her complaint against Elite Insurance, Aviva Insurance, or BCAA. Her complaint against these Respondents is dismissed.
VI JUSTIFICATION
[125] I have found that the Group A Respondents denied Dr. Rogers insurance at least in part based on their practice not to insure properties where more than four cannabis plants are grown. This adversely impacted Dr. Rogers in connection with her disabilities.
[126] The Group A Respondents argue that they have a bona fide and reasonable justification for their practice not to insure properties where more than four cannabis plants are grown. As such, it is not discriminatory: Code, s. 8(1). To succeed in their justification defence, they must prove:
a. A valid purpose: the practice is based on a sound and accepted insurance practice, which is desirable for the purpose of achieving the legitimate business objective of charging premiums that are commensurate with risk;
b. Good faith: the practice was adopted honestly, in the interests of sound and accepted business practice and not for the purpose of defeating the rights protected under the Code; and
c. Reasonable necessity and accommodation: there is no practical alternative.
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [ Grismer ] at para. 20; Zurich Insurance at 352
[127] This framework recognizes that there are specific considerations that apply to complaints of discrimination in the insurance context. As the Supreme Court of Canada recognized in Zurich Insurance , “[t]he determination of insurance rates and benefits does not fit easily within traditional human rights concepts”: at 338. The Court explains:
… The underlying philosophy of human rights legislation is that an individual has a right to be dealt with on his or her own merits and not on the basis of group characteristics. Conversely, insurance rates are set based on statistics relating to the degree of risk associated with a class or group of persons. Although not all persons in the class share the same risk characteristics, no one would suggest that each insured be assessed individually. That would be wholly impractical. Sometimes the class or group classification chosen will coincide with a prohibited ground of discrimination, bringing the rating scheme into conflict with human rights legislation…
…
… In view of the fact that individualized assessment cannot be done, it is necessary to classify the degree of risk on the basis of groups who share characteristics which are material to the risk. It is inevitable that some will be placed in a group who do not share the average characteristics of that group. Rates developed on the basis of the average characteristics of this group will thus discriminate against them. The basic human rights principles referred to above, and applied in the employment cases, must take into account these differences when applied in the context of insurance.
[128] This passage recognizes that, whereas in employment and many services, respondents are required to engage in an individualized assessment to determine whether it is possible to reasonably accommodate a complainant, this is inconsistent with the purpose and nature of insurance. It is determinative of Dr. Rogers’ argument that the Respondents were obliged to individually assess whether they could have “accommodated” her by making an exception to their policies to offer her insurance at a rate equivalent to what she had paid when she was not growing cannabis. Rather, the justification analysis in this case must focus on the purpose and rationale for the Respondents’ practice regarding properties growing more than four cannabis plants, and whether there is no practical or reasonable alternative.
[129] For the following reasons, I am satisfied that the Group A Respondents’ practices are justified and do not violate the Code . I begin with the general framework of the Respondents’ insurance services in this case.
A. Standardized homeowners insurance
[130] Each of the Respondents sells conventional homeowners insurance. To understand what this means, and how the assessment of risk operates in an underwriting context, I have relied heavily on the uncontested evidence of Peter R. Morris, who was qualified in this proceeding as an expert in property insurance. I have also relied on evidence submitted from each of the Respondents about their specific policies. Evidence specific to each of the Group A Respondents came from:
a. Patrick Magnusson, Director of Personal Lines (Intact Insurance and CNS);
b. Beverly Johnson, Personal Insurance Analyst (CNS and Intact Insurance);
c. Gary Taylor, Underwriting Manager (Family Insurance);
d. Myrna Venne, Senior Underwriter (Echelon Insurance Company);
e. Clare Stewart, Chief Operations Officer (Mutual Fire Insurance); and
f. Chad Shurnaik, Vice President of Underwriting and Marketing (Peace Hills Insurance).
Each of these witnesses gave evidence that was consistent with each other, and the other evidence in the proceeding. It was unshaken in cross-examination. I have accepted their evidence in full.
[131] As a starting point, Mr. Morris explains that “the fundamental principle underlying insurance is sharing the losses of the few among the many members of the group who pay premiums”. The calculation of these premiums, in any market, is governed by some basic principles:
… To ensure equity among all group members, each member is charged a rate commensurate with the likelihood of that member experiencing a loss: that is, a group member with a lower likelihood of loss will be charged a lower rate than a group member with a higher likelihood of loss. In addition to considering the likelihood of loss, insurance rates take into account the insurance company’s expenses as well as an allowance for profit. Having established the applicable rate, the premium for any individual group member is arrived at by multiplying the rate times the amount of insurance being purchased. A proper calculation of the premiums to be charged individual group members not only ensures equity among all group members, it also ensures that the insurance company builds up a sufficient insurance fund to be able to:
• Honour its commitment to pay the losses incurred by its policyholders,
• Meet its own expenses and, hopefully,
• Have enough left over to earn a profit for its shareholders
[132] Within this general framework, there are different approaches depending on the insurance market. In commercial and specialty markets, policies are often if not always rated individually. This means that underwriters have latitude to alter the rate to be charged and/or the conditions for coverage, to account for unique and unrateable risks (risks with little or no historical or quantified data). In the specialty market, anything can be insured “for a price”: Ferme de la Valle St Jean v. Fairweathers Insurance Ltd, [1982] NBJ No. 348 (NBCA) at para. 15.
[133] Homeowners insurance is a conventional marketplace product and falls within the “personal lines market”. It is based almost entirely on rateable risks, meaning risks that are quantifiable based on historical data. Mr. Morris explains:
… the pricing for individual homeowners insurance is carried out by computers. The pricing models used by these computers use widely available data relating to the hazards associated with a typical home. These data are then translated into pricing for homeowners insurance through the application of actuarial principles. Because the data points relate to the hazards associated with a typical home, the pricing that is derived from the data is necessarily applicable only to homes with a typical exposure to loss.
When processing an individual application for homeowners insurance, the broker or underwriter enters the appropriate information for that home. A computer then does the calculations and issues the appropriate policy at the computer-generated price. If an individual homeowners insurance underwriter is confronted with a risk that falls significantly outside the standard for a risk within the group, the underwriter may have little or no latitude to amend the premium and/or coverage form. This is because the underlying premium calculation for a standard homeowners insurance policy does not take into account risks that fall outside those that are standard for a typical home. As a result, a residential property that does not conform to the profile of a standard risk (that is, the profile of a property that an underwriter would expect to encounter when underwriting an owner-occupied dwelling) can then become ineligible for a standard homeowners insurance policy. While this standardisation of individual homeowners insurance takes away the freedom an underwriter would otherwise have if assessing a different type of insurance, it allows insurers to offer individual homeowners insurance at a lower cost to consumers than would be the case if an underwriter had to assess the rate to be charged, and the policy conditions to be applied, when assessing each application for a homeowners insurance policy.
[134] There are four broad factors which determine the risk of loss for residential and commercial properties:
a. Construction: the type of building materials used to construct the property.
b. Occupancy: the activities undertaken within the property.
c. Protection: access to public and private fire protection.
d. Exposure: proximity to outside fire hazards.
[135] Growing cannabis falls within the category of risks related to the occupancy of a property.
B. Insuring properties where cannabis is grown
[136] Medical cannabis has been legal in Canada since 1999. The legal regime for growing medical cannabis has changed over the years, at least partly in response to litigation under the Charter of Rights and Freedoms: e.g. see discussion in Allard v. Canada, 2016 FC 236 at paras. 17-64. For this case, it is only necessary to observe that, before 2018, growing cannabis was not a risk covered in most – if any – standard homeowners insurance policies.
[137] In 2018, Canada legalized the use of cannabis for non-medical purposes and allowed the cultivation of up to four cannabis plants in the home for recreational purposes: Cannabis Act . During the period of this complaint, licensing for growing cannabis indoors for medical purposes was governed by the Access to Cannabis for Medical Purposes Regulations. Under those Regulations, a person may be licensed by Health Canada to grow cannabis up to a maximum number of plants specified in the license. As I have said, Dr. Rogers’ licence allowed her to grow up to 49 plants.
[138] After the legalization of cannabis, each of the Group A Respondents considered whether they would offer homeowners insurance to properties where cannabis was grown. I accept the Respondents’ evidence that growing cannabis indoors in a residential setting increases the risk of property damage or loss. These risks, and the lack of actuarially sound data, drove their respective decisions to limit coverage to residential properties growing up to four plants.
[139] To understand the risks associated with growing cannabis indoors in a residential setting, I have relied primarily on the Respondents’ expert evidence. This evidence was consistent with the factors that witnesses for each of the Respondents say they consider in relation to insuring properties where cannabis is grown. The evidence is generally consistent with risks that have been acknowledged in other legal proceedings, and which have been found material to an insurance underwriter: see e.g. Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196 at paras. 62-69. It is also consistent with the type of information requested by Strategic Underwriting Managers Inc, a company which will insure residential properties where cannabis is grown, in the application Dr. Rogers submitted as evidence in this case.
[140] Dr. Rogers argues that the Respondents’ evidence of risks does not apply to her circumstances because it relies on stories about “shady individuals who routinely break the law, grow marijuana under grossly unsafe conditions, steal power from BC Hydro, have guns and weapons, maybe even children living at the grow-op, and use chemicals and pesticides in their illicit growing”. I reject this argument for three reasons. First, while it is fair to say that some of the Respondents’ evidence is derived from risks present in illegal grow operations, not all of it is. Second, the experts each testified that the biggest risks are present whether or not the cannabis is grown for medical reasons or under a legal license. Finally, based on the evidence before me, many of the risks they identified were in fact present in Dr. Rogers’ legal set up.
[141] The biggest risks are related to fire, mould, and crime.
1. Fire
[142] Christopher Reed was qualified as an expert regarding fire hazards related to indoor cannabis cultivation. Mr. Reed is a chemical engineer, a former firefighter, and a certified fire and explosion investigator and instructor. He has been qualified as an expert in proceedings before several courts and tribunals. There was no dispute about his expert qualifications. Dr. Rogers elected not to cross-examine Mr. Reed. As a result, his evidence was set out entirely in a written expert report. I accept it all.
[143] Mr. Reed explains that, by its nature, domestic indoor cannabis cultivation is a fire risk. The essential elements for yielding dried cannabis and its products are: “a growing medium, water, light, nutrients, optimum environment, shelter, and secondary processing”. It requires the use of “chemicals, lighting and ventilation equipment, electrical supply and distribution systems, CO2 generators, and other systems to control light, humidity, and temperature”. These often require modifications to electrical and building systems and increase the risk of fires and property damage.
[144] In his report, Mr. Reed identified seven categories of electrical and fire hazards associated with home cultivation. These hazards are present whether or not cannabis is being grown under a legal license. Although people who grow medical cannabis are required to comply with local regulations, including building and fire codes, in practice this is often not the case. There are several reasons for this, including “a lack of inspection and compliance regulation, shortages in qualified tradespeople, and overall lack of public education”. In contrast, commercial growing operations are heavily regulated to ensure fire safety.
[145] The seven categories of risk are:
a. Electrical supply: Cannabis cultivation is power intensive, and – depending on the amount grown – requires up to ten times the amount of electricity of an average home in BC not growing cannabis. In some cases, indoor cannabis operators undertake clandestine measures to bypass electrical meters, which creates fire hazards.
b. Circuit protection : Many residential structures do not have sufficient circuit protection for the power required for indoor cultivation. This increases the risk of overheating, melting, and fires. These risks are increased by the frequent use of long extension cords and timers required to regulate the light cycle, and a failure to comply with local electrical codes. Older homes often have wiring that has a heightened risk of fire.
c. Grow equipment : Growing cannabis requires specialized equipment for lighting, watering, ventilation, and temperature regulation. In a domestic setting, these systems are commonly set up using readily accessible equipment and “DYI methods” that do not fully account for the unique growing conditions or comply with safety standards. The equipment increases the number of hazardous ignition sources, and can create explosion hazards.
d. Fire fuel load : The amount of fuel present in indoor cannabis operations increases the overall fire hazard and the potential for increased fire damage. Dried vegetation, oils, resins, and other flammable compounds can ignite and burn. Fire can spread more easily depending on how vegetation is arranged. Unlike in commercial facilities, domestic cultivation is not typically designed to consider fuel load limits, flame spread characteristics, or other fire protection measures.
e. Secondary fuels : Cannabis plants require nutrients including nitrogen, phosphorous, and potassium. Growers may also use additional additives, pH controllers, hydrogen peroxide, insecticides, propane, butane, natural gas and building materials which can form combustible or toxic gases, and/or are easily ignited or highly flammable.
f. Cannabis processing : Processing and extracting cannabis is the most dangerous part of production. Systems for processing cannabis can increase the risk of fires or explosions. These risks are heightened where operators do not have the right equipment or are not professionally trained.
g. Fire fighting hazards. The fire response to a property where cannabis is grown can increase the risk of loss. A fire in a detached property where cannabis is grown, especially in a rural setting, may be given a lower call priority because the property is not considered a “normal occupancy”. In addition, there are heightened risks for fighting indoor cannabis cultivation fires, including “electrical hazards, respiratory hazards, potential for explosions, unidentified structural hazards, and the potential for clandestine activities”. As a result, the fire response is primarily “defensive or exterior only”, which usually results in “extensive damage to the structure and complete loss of the contents” and greater exposure to loss in neighbouring properties.
[146] These risks increase with number of plants. Mr. Reed explains that, generally, they are not of particular concern in properties growing up to four plants. Four plants can be grown using inexpensive grow kits with limited power demand, and without modifications to electrical, heating, ventilation, and cooling equipment. It does not involve many of the electrical hazards or additional fuel loads for growing higher volumes of plants. The volume is not typically conducive to secondary processing, with the attendant risks. Above four plants, the risks increase as more plants require “more energy, more equipment, and produces more water vapour and heat” which increases ignition sources and overall fire risk.
[147] I am satisfied that several aspects of Dr. Rogers’ set up for growing cannabis would have caused fire-related concerns. At a high level this is because, as Mr. Reed testified, many of her systems were developed using readily available (not specialized) equipment and DIY methods. Relevant risk considerations include:
a. The cannabis was being grown in a detached structure, which was built in the 1970s, in a rural setting.
b. Dr. Rogers did most of the electrical work herself. The only work done by an electrician was to install a used electrical panel to “make upgrades” to the electrical system.
c. Dr. Rogers installed several systems of lights, including high pressure sodium lights that she described as so powerful that they could burn the plants if they were too close, and which require special glasses to avoid damage to the eyes. “Baby” plants were in a cupboard with a small light, with the door propped open with a stick.
d. Dr. Rogers was actively using all the outlets in the shed, some with power bars and extension cords with multiple devices attached (i.e. lights, fans, timers, radios, air conditioner, heater). Lights were operated by timers running 24/7.
e. Dr. Rogers added several significant pieces of equipment, including lighting, fans (including a “very powerful fan” to remove odours), a window air conditioner, and floor heating.
f. The primary heat source was a wood-burning stove in the middle of the property, which was not professionally installed or WETT certified and had never been inspected while Dr. Rogers owned it.
g. The smoke detectors were not monitored.
h. Temperatures in the summer could reach over 40 degrees, which would trigger a “lockout”, causing all equipment to shut down.
i. Organic fertilizers were stored in a decommissioned fridge.
These circumstances support the Respondents’ evidence that many of the fire risks associated with growing a large volume of cannabis in a residential setting are present regardless of whether the growing is done legally.
[148] Based on this evidence, I accept that there are increased risks of fire and property damage for residential properties where more than four cannabis plants are grown. These risks increase with the number of plants, and may be exacerbated or reduced depending on the conditions of the growing operation and whether cannabis is processed onsite.
2. Mould
[149] David Miller was qualified as an expert regarding mould and cannabis plants in residential housing and allied structures. Dr. Miller is a Professor in the Department of Chemistry at Carleton University. He has a PhD in fungal physiology and a specialised degree in biodeterioration of materials. He is a fellow of the American Industrial Hygiene Association. He has over forty years’ experience studying mould in residential settings, has written extensively on the topic, and has served on national and international expert panels addressing indoor environmental quality. He has previously been qualified as an expert on mould in the Federal Court. There was no dispute about his expert qualifications. His evidence was unshaken in cross-examination, and I have accepted it all.
[150] Dr. Miller explains that mould grows where the moisture burden exceeds the building’s capacity to remove it, through ventilation or dehumidification, or where moisture otherwise accumulates and is not removed. Mould damages building material, which can reduce structural strength and fire resistance. It also creates risks to human health.
[151] Growing cannabis releases high levels of moisture from watering and transpiration and during drying. The moisture increases with the number of plants. An average cannabis plant adds over seven times the amount of water vapour released by an average house plant. In addition, during the drying process, cannabis plants release 70-80% of their weight in water. The ventilation requirements in Canada’s National Building Code are insufficient to address the moisture produced by cannabis cultivation. As a result, residential growers must scale up their capacity to control and remove moisture. They must ensure that water is not accumulating in any space where it is not regularly mopped up. Improper growing and drying can result in growing a type of mould which has special risks to human health.
[152] Health Canada offers general guidance for how to mitigate the risks of mould in a residential setting, but does not offer a specific checklist or detailed guidance about how to eliminate those risks. In part, this is because of the variety of conditions in residential buildings, including variation in age, design, building materials, and environment. It is up to individual homeowners to ensure they take adequate steps to eliminate or mitigate the conditions for mould to grow. The risks of mould are present whether or not cannabis is grown under a legal license.
[153] In my view, Dr. Rogers’ set-up reflected Dr. Morriss’s evidence about the risks of mould. She testified that she did put vents in the walls, and had fans running 24/7. However, she did not have any system to manage humidity because of her view that it was “very dry here”. At the same time, she says that she had ongoing problems with the taps. She testified that she struggled to keep the taps from freezing and had to replace them four times. She installed a reducer valve and water alert systems. But she testified that, when the temperature dropped in winter, the water leaked into the floor and she never found a good solution.
[154] Based on this evidence, I accept that there is a significant risk of mould in residential properties growing cannabis, and this risk increases with the number of plants. This risk may be reduced or mitigated by effective ventilation, dehumidification, and water removal.
3. Crime
[155] Johannes Wheeldon was qualified as an expert about the crime risks associated with residential properties where cannabis is grown. Dr. Wheeldon has a PhD in criminology, and an LL.M. focused on international law. He completed a Post-Doctoral Fellowship in criminal justice. He has over 25 years’ experience studying, teaching, and writing about criminal justice in Canada and internationally. He has written two books on cannabis policy and co-authored eight research articles examining cannabis policy in Canada and European jurisdictions. There was no dispute about his expert qualifications.
[156] Dr. Rogers argues that Dr. Wheeldon’s evidence should not be given weight because it is based on anecdotes and “unverified newspaper articles”. It is true that some of Dr. Wheeldon’s sources were newspaper articles, setting out stories that he did not personally verify. In cross-examination, he explained that it is “ultimately a judgment call” whether he relies on a newspaper article as a reliable source of criminological information. He considers the source, who is cited in the article, and looks for patterns in a geographical area. In this case, I am not satisfied that the reliance on newspaper articles renders Dr. Wheeldon’s evidence unhelpful. These sources are clearly identified, from reputable sources like the CBC, Canadian Press, and Global News. Dr. Wheeldon is clear about what he is relying on articles for, for example to support that there have been reports of crime at legal cannabis grow operations and “anecdotal instances of cannabis theft”. Ultimately, his expert opinion is primarily based on available social science evidence, which he was frank in admitting had some deficits regarding growing legal cannabis. I have accepted his evidence and relied on it.
[157] Dr. Wheeldon testified that current data is insufficient to draw conclusive opinions about the potential criminological dangers of growing cannabis at home under a legal license. However, the limited data that is available suggests a “small but significant risk” for residential properties where cannabis is grown, with the risk increasing for larger cannabis grows – meaning grows with over 50 plants. Dr. Wheeldon cited a large-scale study of cannabis growers in 18 countries including Canada, which found that 25% of the growers were victims of crime associated with growing cannabis. The most common crimes were crop theft and property vandalism.
[158] Generally, Dr. Wheeldon testified that the risks do not depend on whether the cannabis being grown is for medical or recreational purpose. However, properties growing medical cannabis may be appealing for potential theft because of the potential higher yield and perceived better quality.
[159] The risks of crime can be exacerbated or mitigated based on the circumstances, including the location (urban/rural), neighbourhood (high crime/low crime), and the size and nature of the grow (smaller/larger, indoor/outdoor). Risks may be mitigated by taking effective steps to prevent crime through environmental design, including odor suppression, reduced visibility, and security systems.
[160] Again, I find that Dr. Rogers’ circumstances reflect some of the criminological risk factors that Dr. Wheeldon described. Dr. Rogers did not consider there to be a high risk of theft, because the shed was not visible from the road and there was no odour from the plants. She bought security cameras but did not use them. To guard against vandalism, she put a sign on the window which said, “Please do not enter” and warned that there was a fine for interfering with medical marijuana of up to $50,000. In September 2019, she suspected that someone had broken in and tampered with her plants. She told her broker that she believed information had been leaked about her from the broker’s company. Dr. Rogers testified that she called the RCMP, who told her they found no signs of egress. In her evidence, she says that she eventually concluded that the damage was done by a pack rat. In light of Dr. Wheeldon’s evidence, these are not the type of mitigating measures or circumstances which reduce the prospect of criminal activity.
[161] I accept, based on this evidence, that growing cannabis creates some risk of attracting crime, especially theft and property damage. It is not possible to quantify that risk, but generally it is increased for properties growing larger quantities of cannabis and may be exacerbated or mitigated by the conditions.
C. Valid purpose
[162] To be justified under human rights law, an insurance practice must be based on a sound and accepted insurance practice, which is desirable for the purpose of achieving the legitimate business objective of charging premiums that are commensurate with risk. I am satisfied that the Group A Respondents have proven a valid purpose for their practice.
[163] Based on the evidence set out above, I accept that there are material risks of property damage and loss associated with growing cannabis in a residential property. These risks increase with the number of plants and generally are not of such significant concern for properties growing four plants or less. The most significant risks relate to fire and mould. While crime presents some risk, in my view the evidence is less definitive about the extent of that risk.
[164] All these risks can be addressed and reduced. I agree with Dr. Rogers that it is possible, and indeed may not be unusual, that a legal cannabis grower takes sufficient care in their growing operation to fully address the risks that I articulate below. In an insurance context, however, the important point is that the evidence before me has established that underwriting these risks requires more information and more assessment than contemplated by the Group A Respondents’ standard homeowners insurance policies.
[165] At the same time, critically, the Respondents’ undisputed evidence is that there was no actuarially sound data to quantify the risks associated with growing cannabis. As such, they fall into the category of “unrateable risks” which require individualized assessment. Mr. Morriss explains:
The determination of premiums based on actuarial principles requires the application of the law of large numbers, probability theory, and loss probability. The reliability of the predictions upon which actuaries rely are dependent on the size of the sample, the period over which the sample is taken, and the conditions in the past relative to the future conditions. It is my opinion that these conditions do not exist with respect to the legally-sanctioned growing of large numbers of cannabis plants: that is, there are not enough of such homes to create a statistically meaningful sample, and the conditions in the past (when cultivation was not legal) are not necessarily comparable to the conditions in the present and foreseeable future (when cultivation is legal). … It is even more the case that conditions do not exist to create a formula for premiums that would accurately account for the level of risk for what I expect are the much smaller number of properties on which more than four cannabis plants are grown. As a result, at least for the time being, if an insurer wishes to set the premium for a home on which a large number of cannabis plants are being grown, it must necessarily rely on manually rating the property in question.
[166] Although the lack of data also applies to properties growing less than four cannabis plants, the evidence of Mr. Morriss and the Respondents is that most insurers have accepted that growing up to four plants is now something that may be expected in a standard owner-occupied home. This aligns with the government’s decision to legalize growing up to four cannabis plants in any household, for any reason. Further, the risks associated with growing cannabis were considered acceptable given the small number of plants.
[167] I am satisfied, based on this evidence, that the Group A Respondents adopted their practice regarding properties growing more than four cannabis plants based on a sound and accepted insurance practice, which is desirable for the purpose of achieving the legitimate business objective of charging premiums that are commensurate with risk.
D. Good faith
[168] I am satisfied that each of the Group A Respondents’ practices have been adopted in good faith, and not for the purpose of defeating protected rights. There is no evidence to the contrary.
[169] Dr. Rogers argues that the Respondents’ assessment of risks associated with growing cannabis is rooted in stereotyping, and an outdated perception that growing cannabis is associated with criminality. Throughout the proceeding, she took offence to terms like “grow-op” and argued that the Respondents were treating her like a criminal. I acknowledge, of course, that for many years it was illegal to grow and possess cannabis in BC. In some insurance policies, growing cannabis was considered an “illicit, socially harmful act”: see e.g. Pietrangelo et al v. Gore Mutual Ins. Co .et al, 2010 ONSC 568 at para. 101. It is possible some of the social stigma has lingered since legalization. However, the evidence in this case does not support a finding that the Respondents’ policies were based on stereotyping or stigma. Rather, they were based on actual, non-discriminatory, risks associated with growing cannabis.
E. No practical or reasonable alternatives
[170] I have accepted that the Respondents were acting in good faith, for a valid purpose, based on legitimate risks and the available actuarial information. Their policies are consistent with business practices across the insurance industry. I now accept that, for the Group A Respondents, there was no reasonable or practical alternative.
[171] There are companies that insure properties where more than four cannabis plants are grown. However, as Dr. Rogers learned in her own inquiries, the price of these insurance policies will generally be higher to account for the cost of manually rating the property and the increased risk of loss. As Mr. Morriss explains, manual rating requires: (1) underwriters with the specialized skillset necessary to assess the level of risk associated with growing large amounts of cannabis in a residential property, (2) amending the insurer’s underwriting policies and procedures to specify the terms and pricing under which the property would be accepted, and (3) potentially added expense to inspect the property to ensure the quality of risks. Mr. Morris further explained that an insurer who charged the same premium to a house growing 49 cannabis plants as to a house growing four cannabis plants would be “at risk of not collecting a sufficient amount of premium, thereby threatening the insurer’s financial stability” and placing the insurer at a competitive disadvantage.
[172] Each of the Group A Respondents were selling conventional, commoditized, homeowners insurance. This means that all, or almost all, of the relevant loss factors are rateable risks. This allows the companies to keep overhead costs low and charge lower premiums. Ms. Johnson explained that these policies “are the insurance industry’s version of pre-packaged, bulk commodity products which are inexpensive to create and therefore inexpensive to purchase, despite the often large replacement value of the homes and property insured”.
[173] The evidence of the Group A Respondents was consistent about why it was not practical or reasonable, given their business model, to insure properties growing more than four cannabis plants. Because the risks associated with these properties are not rateable, they must be individually assessed. The Group A Respondents do not have the internal expertise and resources to do these assessments. If they were to undertake those assessments, premiums would have to increase to cover increased overhead and increased risk of loss, while still ensuring a profit margin. This is not a reasonable or practical alternative.
[174] The heart of Dr. Rogers’ complaint is her argument that the Respondents should have “accommodated” her by offering her home insurance at a cost equivalent to what she was paying before she was growing up to 49 cannabis plants. Respectfully, this is incompatible with the nature and purpose of insurance, as described the Supreme Court of Canada. Human rights law does not require insurance companies to subsidize their clients by offering insurance at rates that are not commensurate with risk. Doing so would amount to undue hardship.
[175] I am satisfied, based on the substantial amount of evidence before me, that the practice of the Group A Respondents not to insure properties growing more than four cannabis plants was adopted for a valid purpose, in good faith, and there is no reasonable or practical alternative. As such, it is bona fide and reasonably justified and not discriminatory. Dr. Rogers’ complaint against these Respondents is dismissed.
VII APPLICATION FOR COSTS
[176] Dr. Rogers asks that I order the Respondents to pay costs for improper conduct in the course of this complaint: Code, s. 37(4). I have not found it necessary to seek submissions from the Respondents. The application is denied.
[177] The Tribunal may award costs “against a party to a complaint who has engaged in improper conduct during the course of the complaint”: Code , s. 37(4). The purpose of a costs award is punitive: Terpsma v. Rimex Supply (No. 3), 2013 BCHRT 3 at para. 102. It aims to deter conduct that has a significant and detrimental impact on the integrity of the Tribunal’s process: Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 246.
[178] Dr. Rogers argues that, since September 2019, the Respondents have engaged in improper conduct which “contributed to protracted litigation, abuse of the complainant, contempt of court rules, and continued breach of multiple regulatory rules and the Cannabis laws” [as written]. She has submitted a very long list of examples. I do not find it necessary or efficient to deal with each example individually; rather, I find that I can address the application at a high level.
[179] As a starting point, Dr. Rogers cites the Canadian Justice Council’s Statement of Principles for Self-Represented Litigants, and the well-known barriers faced by self-represented people in the legal system. She says, and I accept, that these barriers are exacerbated for people with disabilities. She argues that the Respondents took advantage of these barriers and, throughout this process, have bullied, hectored, and defamed her, and treated her uncivilly and with disrespect. As examples, she cites the Respondents’ arguments about her credibility and whether she had proven the elements of her case. She says they “mocked” her treatment and growing efforts, and “gaslit” her and the Tribunal in their closing arguments.
[180] I disagree with this characterization of the Respondents’ conduct in the strongest possible terms.
[181] It was Dr. Rogers who elected to file this human rights complaint against 14 insurance companies. Each of those companies was entitled to defend itself, with the help of a lawyer or lawyers. Throughout the process, Dr. Rogers has misinterpreted the conduct of the Respondents’ counsel as improper or abusive, in circumstances where they were simply defending their clients. I cautioned her about making unfounded allegations. For example, in my letter dated September 25, 2023, I addressed Dr. Rogers’ complaints against counsel, which are similar to those which she raises in her costs application. After disagreeing with her characterization of the lawyers’ conduct, I explained:
Everyone in this process deserves to be treated with respect. As I have said many times, this is a difficult, adversarial process. I appreciate that it is especially difficult for Dr. Rogers. However, her complaints about the lawyers … are not fair and are not respectful. I kindly ask her to refrain from accusing the lawyers of sharp practice or misconduct so long as they are representing their clients and following the Tribunal’s process and direction in this process.
[182] Given the unique complexities of this case, I continue to accept that this was a difficult process for Dr. Rogers. However, I am not persuaded that this was due to any improper conduct by the Respondents. To the contrary, the Respondents undertook considerable effort to streamline the process wherever possible, complied with the Tribunal’s directions and modifications to the hearing process which were designed to accommodate Dr. Rogers, and treated Dr. Rogers with respect and sensitivity throughout the hearing process.
[183] Many of Dr. Rogers’ arguments are about the substance of the complaint and the Respondents’ defence to this complaint. For example, she argues that the Respondents have behaved improperly by continuing to deny her insurance while she is growing up to 49 cannabis plants, pursuing a “meritless defence”, and refusing to settle her complaint. It is not improper conduct to defend a human rights complaint. Ultimately, I have accepted that defence and can find nothing improper in how the Respondents defended themselves in the process.
[184] Next, Dr. Rogers argues that the Respondents improperly failed to fully disclose relevant insurance policies. I understand that this relates to documents that Dr. Rogers sought in disclosure, and which the Tribunal declined to order. Respectfully, I do not understand from her arguments what these documents are and how they would have been relevant to the complaint. I am not persuaded that any failure to disclose (if there was one) impacted the integrity of this process.
[185] Finally, Dr. Rogers argues that the Respondents have acted improperly by quoting from the talk-to-text transcript generated by Microsoft Teams, despite my cautions that this was not an official record of the Tribunal’s proceeding. I understand the basis for this argument, but this was not improper. Any party may refer to oral evidence in their closing submission, relying on their notes or, in this case, the Teams “transcript”. In reviewing these submissions, I understand that any quotes from the evidence are based on a party’s notes or the Teams “transcript”, and not an official transcript. It was open to Dr. Rogers to disagree with any of the Respondents’ notes of the evidence. In the case of a disagreement, I would have reviewed the Tribunal’s audio recording. Here, there was no disagreement and, in my view, no prejudice arising from the limited times that Respondents referred to quotes from a witness’s evidence.
[186] Again, I appreciate this was a difficult process for Dr. Rogers. I was impressed by her hard work, preparation, and presentation during the oral parts of the hearing. I was equally impressed by the coordinated efforts of the Respondents to make this complex hearing as accessible and simple as it could be, to Dr. Rogers’ benefit. I am not persuaded that they behaved improperly at any point in the Tribunal’s process. I deny the application for costs.
VIII CONCLUSION
[187] I deny Dr. Rogers’ application for costs.
[188] I have found that Dr. Rogers’ complaint of discrimination is not justified. It is dismissed: Code, s. 37(1).
Devyn Cousineau
Vice Chair