Sokolova v. BC Ministry of Health, 2026 BCHRT 187

Date Issued: August 25, 2026
File: CS-008015

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:

Maria Sokolova
COMPLAINANT

AND:

His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Health
RESPONDENT

REASONS FOR DECISION

APPLICATION TO DISMISS COMPLAINT
Section 27(1)(c)

Tribunal Member: Christopher J. Foy
On their own behalf: Maria Sokolova
Counsel for the Respondent: Rochelle Pauls and Jaclyn Salter

I INTRODUCTION

[1] Ms. Maria Sokolova filed an individual complaint against His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Health [Ministry] alleging discrimination based on physical disability and sex in the provision of services contrary to section 8 of the Human Rights Code [Code]. This is not a class complaint.

[2] Ms. Sokolova has a diagnosis of multiple sclerosis [MS]. She alleges that the Ministry fails to provide competent assistance to MS sufferers driven by historic discrimination against women, in particular women with disabilities.

[3] Ms. Sokolova’s complaint raises issues related to the failure of the Ministry in its assessment, approval and funding of more effective drugs to treat MS through the Ministry’s PharmaCare Program [PharmaCare].

[4] In addition, Ms. Sokolova states the Ministry discriminated against her because a treatment for MS, autologous hematopoetic stem cell transplant [AHSCT], is not funded by the Ministry’s Medical Services Plan [MSP].

[5] Further, as AHSCT involves chemotherapy, it is recommended that fertility preservation treatment including egg or embryo freezing take place. At the material time fertility preservation treatment was not funded by MSP and Ms. Sokolova alleges this also is discriminatory.

[6] The Ministry denies discriminating against Ms. Sokolova and apply to dismiss her complaint under s. 27(1)(c) of the Code. The basis of the application is that Ms. Sokolova will not be able to establish a prima facie case of discrimination. In the alternative, the Ministry submits it will be able to establish a defence of a bona fide and reasonable justification for its decisions.

[7] The Ministry’s position is that it makes no distinction with respect to the treatments available to individuals with MS, or with respect to fertility treatments, on the basis of disability, sex or otherwise.

[8] The Ministry says that decisions regarding which treatments are funded through MSP, and which drugs are eligible for coverage under PharmaCare are made in accordance with expert recommendations and follow a prescribed process. Consequently, the Ministry argues there is no connection between these decisions and Ms. Sokolova’s disability or sex.

[9] The issue I must decide is whether there is no reasonable prospect Ms. Sokolova will establish at a hearing that she was adversely impacted in the provision of services customarily available to the public and that her sex or physical disability were a factor in that adverse treatment.

[10] While I do not refer in my decision to all the information filed by the parties in relation to this application to dismiss, I have considered it and thank the parties for their respective submissions. The following will not be a complete recitation of the parties’ submissions, but only those necessary to come to my decision.

[11] Below I first set out the background to the complaint. I then set out my reasons for granting the Ministry’s application to dismiss.

II BACKGROUND

[12] The following background summary is taken from the parties’ submissions. Given the nature of the application, I make no findings of fact. In order to understand the context of this matter, it is helpful to first review the applicable sections of the Medicare Protection Act[1] [MPA] and Pharmaceutical Services Act[2] [PSA] andhow health services are provided through the Province’s publicly funded system. I will then set out Ms. Sokolova’s circumstances.

A. Medicare Protection Act

[13] The purpose of the MPA is set out in section 2 which states:

The purpose of this Act is to preserve a publicly managed and fiscally sustainable health care system for British Columbia in which access to necessary medical care is based on need and not an individual’s ability to pay.

[14] The MPA continues the Medical Services Commission. [MSC]

[15] Under section 3 of the MPA the MSC reports to the Minister of Health and consists of nine members appointed by the Lieutenant Governor-in-Counsel as follows:

3 members appointed from among 3 or more persons nominated by the Association of Doctors of BC;
3 members appointed on the joint recommendation of the minister and the Association of Doctors of BC to represent beneficiaries;
3 members appointed to represent the government.

[16] Under section 26 of the MPA, the MSC establishes a Payment Schedule. The Payment Schedule is the list of fees approved by the MSC and payable to physicians for insured medical services provided to beneficiaries enrolled with the MSP.

[17] Experimental medicine is not chargeable by physicians to MSP. The Payment Schedule sets out the following regarding experimental medicine:[3]

New procedures and therapies not performed elsewhere and which involve a radical departure from the customary approaches to a medical problem, are considered to be experimental medicine. Services related to such experimental medicine are not chargeable to MSP.

New therapies and procedures which have been described elsewhere may or may not be deemed to be experimental medicine for the purposes of determining eligibility for payment by MSP.

Until new procedures or therapies are proven by peer-reviewed studies and adopted by the medical community, they are experimental. Services related to such experimental medicine are not the responsibility of the Medical Services Plan.

[18] The process to follow for consideration to include a new fee item related to a new therapy or procedure is for medical practitioners to submit an application through their appropriate section(s) of the Doctors of BC to the Doctors of BC Tariff Committee [DOBCTC].

[19] The DOBCTC will then advise the MSC whether or not this new therapy constitutes experimental medicine for MSC’s final determination for possible inclusion on the Payment Schedule.

[20] Additionally, the process for additions to the Payment Schedule are made in accordance with the Master Agreement between the Ministry, the Doctors of BC, and the MSC. This is explained in the Payment Schedule:[4]

Medical practitioners who wish to have modifications to the MSC Payment Schedule considered should submit their proposals to the Doctors of BC Tariff Committee through the appropriate Section. The Government and the Doctors of BC have agreed to consult with each other prior to submitting a recommendation to the MSC. If both parties agree, in writing, to a revision, MSC will adopt the recommendation as part of the MSC Payment Schedule as long as the service is medically necessary and consistent with the requirements of the Medicare Protection Act and Regulations and it agrees with the estimated projected cost that will result from the revision. In the case where there is no agreement between Government and the Doctors of BC, both parties may make a separate recommendation to the MSC and the MSC will determine the changes, if any, to the MSC Payment Schedule.

[21] The Ministry considers AHSCT treatment for MS patients as experimental medicine. There has not been an application by medical practitioners, the Doctors of BC, or the Ministry for AHSCT treatment for MS patients to be included on the Payment Schedule.

B. Pharmaceutical Services Act

[22] Section 2 of the PSA establishes PharmaCare with the Minister of Health being responsible for its administration.

[23] PharmaCare pays for drugs listed on a “formulary” established by the Minister.

[24] “Formulary” is defined in section 1 of the PSA as “a list of drugs, devices and substances that are benefits for the purposes of a drug plan”.

[25] Under section 3(2) of the PSA, the Minister has the broad authority and “may do anything the minister considers necessary or appropriate for the purposes of establishing and maintaining formularies”. This includes the following:

considering all published and unpublished information respecting the clinical efficacy, effectiveness and safety of a drug, device or substance;
considering the price and cost-effectiveness of a drug, device or substance;
requesting information respecting a drug, device or substance from its manufacturer or a supplier;
undertaking, or requiring a manufacturer or supplier to provide for, an independent review of the clinical efficacy, safety and cost-effectiveness of a drug, device or substance, and setting the terms and conditions of the review;
considering the advice of a committee established under section 31 [advisory committees];
if 2 or more drugs, devices or substances have different compositions or means of administration or use but have essentially the same therapeutic objectives, treating the drugs, devices or substances differently;
determining, on any basis, including following a process involving the solicitation of competitive proposals, which drugs, devices or substances to list on a formulary;
setting conditions that must be met for a drug, device or substance to be listed on a formulary;
changing a formulary, including cancelling the listing of a drug, device or substance from the formulary.

[26] As per section 3(3) of the PSA, a change under subsection 3(2)(i) may be made at any time without notice to anyone or an opportunity to be heard.

C. Ms. Sokolova

[27] In early 2020, Ms. Sokolova was diagnosed with MS, specifically relapsing-remitting MS [RRMS]. MS is a disease where the human body’s immune system attacks the myelin sheath, a coating around nerve cells in the body that send electrical signals. Symptoms of MS can include loss of mobility, vision impairment, and fatigue, amongst others.

[28] MS may be treated with disease modifying treatments [DMT].

[29] On or about January 2020, Ms. Sokolova’s doctor offered her the option of being treated with Rituximab. Rituximab is a DMT commonly used to reduce relapse risk and delay disability progression in MS patients. At the material time, Rituximab was covered under PharmaCare for MS patients under the brand name Rituxan.

[30] In March 2020, Ms. Sokolova was treated with the Rituximab/Rituxan.

[31] Between August 20, 2020 and February 18, 2021, the Ministry ended coverage for Rituximab/Rituxan and transitioned to provide coverage for three available biosimilar drugs including a drug called Truxima.

[32] On October 16, 2020, Ms. Sokolova received her second infusion of Rituximab/Rituxan.

[33] Also in October 2020, Ms. Sokolova began seriously considering AHSCT treatment for her RRMS. AHSCT collects a patient’s own stem cells, stores them, and returns them back to the patient after a high dose of chemotherapy or immunosuppressive therapy. AHSCT has been used for decades treating patients with lymphoma or leukemia.

[34] Ms. Sokolova sought advice from her neurologist on whether to have AHSCT treatment. Her neurologist advised that AHSCT for MS patients had been discussed at a recent conference he attended as an effective treatment for MS in certain cases.

[35] At the material time, AHSCT treatment was only being reputably performed in Canada by a Dr. Freedman at Ottawa Hospital as part of a clinical trial. Ms. Sokolova’s neurologist confirmed that AHSCT treatment would not be available to her in Canada.

[36] As mentioned, AHSCT for MS patients is not listed in the MSP Payment Schedule.

[37] On or about November 2, 2020, Ms. Sokolova applied for AHSCT treatment at the Pirogov’s National Medical Surgical Center in Moscow, Russia. Ms. Sokolova holds both Canadian and Russian citizenship. She was accepted for treatment starting April 21, 2021 at a cost of approximately $18,000.00 CAD.

[38] MSP does provide an opportunity for patients to apply for funding when a “new therapy or procedure is being performed outside British Columbia.”[5]

[39] Ms. Sokolova did not apply for the AHSCT treatment she received from the Pirogov’s National Medical Surgical Center to be considered insured services by MSP. Instead, she paid the out-of-pocket costs of the AHSCT treatment.

[40] A requirement for AHSCT treatment is to not take DMTs, and in particular Rituximab/Rituxan, for a period of six months before treatment. Ms. Sokolova discontinued treatment through DMTs. Her last infusion of Rituximab/Rituxan was the one on October 16, 2020.

[41] On February 18, 2021, Ms. Sokolova consulted with a doctor specializing in reproductive medicine. AHSCT treatment involves chemotherapy and her doctor recommended that fertility preservation treatment including egg or embryo freezing take place.

[42] At the material time, MSP did not cover fertility preservation treatment for anyone in British Columbia.

[43] In March 2021, Ms. Sokolova paid approximately $15,500.00 CAD for the required fertility procedure and storage.

[44] From April 21, 2021 until she was discharged on May 17, 2021, Ms. Sokolova received AHSCT treatment at the Pirogov’s National Medical Surgical Center.

[45] According to Ms. Sokolova, she has experienced improvement since receiving the AHSCT treatment. She has not required DMTs between at least May 17, 2021 – April 15, 2025.

III DECISION

Should the complaint be dismissed under s. 27(1)(c) of the Code?

[46] I begin by setting out the relevant legal principles.

[47] Section 27(1)(c) of the Code is a gatekeeping provision where the Tribunal has the discretion to dismiss a complaint if it determines that the complaint has no reasonable prospect of success. This allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.

[48] The Tribunal’s role is to assess whether, based on all the material before it, and applying its expertise, there is no reasonable prospect the complaint will succeed at a hearing: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at paras. 9 and 27; Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27 [Hill].

[49] To prove her complaint at a hearing, Ms. Sokolova will have to prove that she has a characteristic protected by the Code, she was adversely impacted with respect to services customarily available to the public, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If Ms. Sokolova does that, the burden shifts to the Ministry to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.

[50] To be successful under s. 27(1)(c), the burden is on the Ministry to show there is no reasonable prospect of the complaint succeeding. This may be established in two ways. First, if the Tribunal determines there is no reasonable prospect that the complainant will be able to establish one or more elements of the complaint at a hearing, it may dismiss the complaint. The threshold for proceeding to a hearing is low. In circumstances where the respondent disputes one of these elements, the complainant’s only obligation is to point to some evidence capable of raising their complaint “out of the realm of conjecture”: Hill at para. 27.

[51] Second, the Tribunal may consider a defence in an application under s. 27(1)(c): Trevena v. Citizens’ Assembly on Electoral Reform and others, 2004 BCHRT 24 at para. 67.

[52] If it is reasonably certain that a respondent will establish a defence at a hearing of the complaint, then there is no reasonable prospect that the complaint will succeed: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50.

[53] I begin my analysis with the elements Ms. Sokolova would have to prove at a hearing to establish discrimination, recognizing that she need not prove these elements on this application, rather, the Ministry must persuade me Ms. Sokolova has no reasonable prospect of doing so.

1. Protected Grounds: Sex & Physical Disability

[54] There is no dispute that Ms. Sokolova is protected from sex discrimination under the Code because of her identity as a woman.

[55] The medical evidence provided support Ms. Sokolova’s diagnosis of MS. There is no dispute that MS is a recognized disability which falls within the protected ground of physical disability under the Code.

[56] I am satisfied that it is beyond conjecture that Ms. Sokolova has characteristics protected by the Code under sex and physical disability.

2. Adverse Impacts

[57] Ms. Sokolova alleges that she has suffered adverse impacts in the provision of health services given she has had to pay out-of-pocket for the AHSCT treatment and the fertility preservation treatment. In addition, she says the Ministry’s decision to switch from Rituximab/Rituxan to Truxima caused her “uncertainty”.

[58] The Tribunal has recognized that paying out-of-pocket for health services when MSP does not cover treatments is an adverse impact within the meaning of the Code.[6]

[59] I have difficulty accepting that Ms. Sokolova suffered an adverse impact for paying out-of-pocket for the AHSCT treatment when she failed to apply to have any of the costs reimbursed by MSP. Instead, I accept that travelling to Russia during the COVID-19 pandemic carried inherent risks given her MS and the fact that AHSCT treatment leaves the patient severely immunocompromised for at least several months. I am satisfied this raises her complaint that she was adversely affected out of the realm of conjecture.

[60] In my view, Ms. Sokolova’s payment for fertility preservation is an adverse impact as funding for that treatment was not, at the time, available through MSP.

[61] With respect to Ms. Sokolova suffering an adverse impact because of the Ministry’s decision to switch from Rituximab/Rituxan to Truxima, the Ministry argues that there is no evidence Ms. Sokolova suffered an adverse impact.

[62] The Ministry argues that Ms. Sokolova never in fact switched to Truxima. She has not required further infusions of Rituximab/Rituxan or the need to have an infusion of Truxima. I am not persuaded by the Ministry’s arguments.

[63] The Ministry has a Biosimilars Initiative. The Biosimilars Initiative transfers PharmaCare coverage from originator biologic medications to Health Canada approved biosimilar medications.

[64] The Biosimilars Initiative Pharmacy Guide – Rituximab, recognizes that “the greatest hurdle for successful switching to a biosimilar is the potential for the nocebo effect.”[7]

[65] The nocebo effect is where a patients’ pre-existing beliefs, previous healthcare experiences, and mindset can have a very real effect on symptoms and their sense of wellbeing.

[66] According to Ms. Sokolova, the Ministry’s decision to switch to Truxima cemented her decision to go to Russia and her feeling that the MSP treatment rules left her trapped.

[67] Given Ms. Sokolova’s mindset, her uncertainty brought about by the Ministry’s decision to switch from Rituximab/Rituxan to Truxima, in my view this takes her allegation of an adverse impact out of the realm of conjecture despite the fact that there is no evidence she was treated with Truxima.

3. Connection To Physical Disability And/Or Sex

[68] The Ministry argues that Ms. Sokolova has not taken her allegations of a nexus between her disability or sex and the alleged adverse impacts she suffered out of the realm of speculation and conjecture.

[69] The Ministry says that any disagreement Ms. Sokolova has with its health policy decisions and resource allocation does not by itself create a nexus with a prohibited ground.

[70] The Ministry maintains that the Province is free to target the programs and benefits it wishes to fund as a matter of public policy. The Ministry argues that Ms. Sokolova is not seeking equal access to a benefit that the Province of British Columbia provides, but rather a different benefit entirely and there is no obligation on government to provide it.

[71] The Ministry argues that its decision to switch from Rituximab/Rituxan to Truxima was part of the Ministry’s Biosimilars Initiative providing for coverage with similar efficacy, safety and less cost. There is no nexus to the switch from Rituximab/Rituxan to Truxima and Ms. Sokolova’s disability or sex.

[72] With respect to AHSCT for MS patients, the Ministry states that it considers AHSCT for MS patients to be captured by the Payment Schedule as “Experimental Medicine” and until such time as there is an application approved by MSC to include it in the Payment Schedule there is no obligation to provide funding for it.

[73] The Ministry submits that there are reasonable, legitimate and non-discriminatory explanations for excluding experimental medicine. Experimental medicine may present unnecessary risks to the patient, are inconsistent with evidence-based decision making and are not a wise use of limited public funds.

[74] Regarding the failure to fund the fertility preservation benefits Ms. Sokolova sought, the Ministry argues that she has not been denied a service customarily available to the public because those benefits were not publicly funded for anyone.

[75] The Ministry says it has no positive obligation to provide the specific benefit of fertility preservation and there is no evidence to support a nexus between Ms. Sokolova’s disability and/or sex and the fact the Ministry hadn’t included fertility preservation benefits in the Payment Schedule.

[76] Finally, although the Ministry recognizes that MS affects more women than men, the Ministry argues that Ms. Sokolova has not advanced sufficient evidence to demonstrate why the overrepresentation of women is connected to the Ministry’s failure to provide funding for AHSCT and fertility preservation. Instead, Ms. Sokolova’s arguments are purely speculative.

[77] On the whole of the evidence, I am not persuaded that Ms. Sokolova’s allegations of discriminatory conduct by the Ministry have been taken out of the realm of speculation and conjecture.

[78] The material before me satisfies me that there is no reasonable prospect that Ms. Sokolova will be able to establish a prima facie case of discrimination.

[79] I address each of Ms. Sokolova’s allegations in turn.

Switch from Rituximab/Rituxan to Truxima

[80] Ms. Sokolova articulates the reason for raising the Ministry’s switch from Rituximab/Rituxan to Truxima in her complaint as follows:

The point about Rituximab in the complaint was meant to illustrate the arbitrary nature of the rationale for the rules, to explain my decision to pay for HSCT and explain why the complaint asks that the DMT eligibility rules be largely eliminated.

[81] Ms. Sokolova asserts that the current MSP funding rules are based on an “escalation” approach to treatment which means that treatment begins with low efficacy treatments instead of high efficacy treatments, like AHSCT. She asserts this approach is contrary to science.

[82] She acknowledges however that her treatment began with Rituximab/Rituxan, a higher efficacy medication. She claims that the Ministry funded Trixuma “based on a guess that it would work.”

[83] I am not satisfied that Ms. Sokolova’s arguments take her allegation of nexus out of the realm of conjecture on the whole of the evidence before me.

[84] There is no dispute that DMTs for MS patients are prescribed on a case-by-case basis by a patient’s treating physician.

[85] On the evidence before me the Ministry’s decision to switch from Rituximab/Rituxan to Truxima was in keeping with Heath Canada’s approval of Truxima, evidence of efficacy of Truxima relative to Rituximab/Rituxan, and cost-savings as per the Biosimilars Initiative, and not based on sex or Ms. Sokolova’s allegations of discrimination based on her disability.

[86] Biosimilars are authorized by Health Canada after a scientific evaluation. On April 4, 2019, Truxima was issued a Notice of Compliance from Health Canada as a biosimilar to Rituximab/Rituxan.

[87] Evidence on this application includes a research paper from the Multiple Sclerosis Journal, accepted for publishing on February 19, 2020, titled “Comparison of rituximab originator (MabThera) to biosimilar (Tuxima) in patients with multiple sclerosis”. The authors received no financial support for the research, authorship, and/or publication of the paper. Further the authors declared no potential conflicts of interests.[8]

[88] This research paper concluded the following:

The efficacy and safety of the rituximab biosimilar Truxima seem equivalent to the originator MabThera in MS patients. Truxima could represent a relatively cheap and safe therapeutic alternative to MabThera and could improve access to highly efficient therapy for MS in low-or middle-income countries.

[89] A purpose of the MPA is to preserve a fiscally sustainable health care system for British Columbia and under ss.3(2)(b)(i) of the PSA the Minister has broad power to consider the price and cost-effectiveness of a drug for it to be listed or cancelled from the list.

[90] The switch from Rituximab/Rituxan to Truxima offered a 30% reduction in costs for the Province.[9]

[91] Savings from the use of biosimilars “…is redirected to other health priorities, including adding or expanding other drugs as well as providing support for better patient care…”[10]

[92] Consequently, I am satisfied there is no reasonable prospect Ms. Sokolova will establish at a hearing that her sex or physical disability were a factor in any alleged adverse treatment regarding the Ministry’s switch from Rituximab/Rituxan to Truxima.

Failure to fund AHSCT

[93] Ms. Sokolova argues that sex and her disability were factors in the adverse treatment she suffered because of the following:

Women with MS are disproportionately targeted by the unscientific failure to provide AHSCT; and
The unexplained delay and reluctance to provide AHSCT is because of stereotypes and misinformation, and a lack of value placed on the well-being of people with MS, especially women.

[94] The evidence on this application demonstrates that MS rates in Canada are 2.6 women reporting having MS for every man with the condition.[11]

[95] The Ministry argues that Ms. Sokolova has not advanced evidence to explain why the overrepresentation of women is connected to the failure of the Province to fund AHSCT and that this argument is purely speculative. I agree.

[96] Evidence of a disproportionate impact may support a connection to the protected characteristics of the impacted group: see Vancouver Area Network of Drug Users v. BC (Human Rights Tribunal), 2018 BCCA 132 [VANDU] at paras. 89-98. However, statistical correlation alone is not always enough to demonstrate a connection between adverse treatment and protected grounds. Rather, the discriminatory connection must also be supported by “an understood theory as to the nature of the connection between the facially neutral law or practice and the prohibited basis of discrimination”: VANDU at para. 94. As stated by the Supreme Court of Canada in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 at para. 49, “…there is a difference between discrimination and distinction. Not every distinction is discriminatory.”

[97] In this case, I am not prepared to draw an inference that because more women have MS than men, that the Province not listing AHSCT on the Payment Schedule, or funding fertility preservation, is discriminatory.

[98] Ms. Sokolova has not provided evidence on this application beyond speculation to support her claim that there is:[12]

… a wholesale failure to provide competent assistance to sufferers driven by historic discrimination against women, in particular women with disabilities, based on stereotypes about it being acceptable to permit women to decline as women belong in the home and have no active role in public life worth preserving and the idea that disability is monolithic and untreatable and a person is “useless” once disabled to any degree, and no resources need to be invested.

[99] The Ministry says it did not deny funding for AHSCT treatment for MS patients because of Ms. Sokolova’s sex or physical disability, but because that treatment was not eligible for funding under the Payment Schedule. This decision was the result of a non-discriminatory application of a neutral rule.

[100] The Ministry cites Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78 at para. 41, where the Supreme Court of Canada held that s. 15 of the Canadian Charter of Rights and Freedoms does not require governments to provide any particular benefits to people with disabilities, but that once a benefit is provided, it must be provided in a non-discriminatory manner. This Tribunal has applied the same principles under the Code: Hoffman and another v. B.C. (Ministry of Social Development) and another, 2012 BCHRT 187 at para. 80.

[101] I agree with the Ministry’s submission that the Code does not require the Ministry to provide any particular benefit and I am satisfied that Ms. Sokolova has not taken her allegations of a connection between her sex and/or disability and the lack of funding for AHSCT treatment for MS patients out of the realm of conjecture.

[102] The Ministry argues there is a process available to include AHSCT for MS patients and if and when an application is made, AHSCT for MS patients will be treated in the same manner as all requests for new therapies and treatments. The Ministry cites Turnbull v. British Columbia (Ministry of Health Services) 2011 BCHRT 324 at para. 98 to support its position [Turnbull].

[103] Turnbull was an application to dismiss under s. 27(1)(c) of the Code. In Turnbull, the complainant had MS and alleged discrimination contrary to s.8 of the Code because a procedure involving the application of venous angioplasty techniques to persons with MS was not funded through MSP. This procedure was not listed on the Payment Schedule and the complainant paid out-of-pocket to have it performed in Germany.

[104] Ms. Sokolova argues that Turnbull is distinguishable since the complainant in that case did not provide medical information to establish that the MS procedure performed was safe and efficacious treatment, whereas she has. I do not find this distinction persuasive.

[105] Although in Turnbull, the Member dismissed the complaint, in part, based on the complainant’s lack of evidence on the effectiveness of the procedure, in my view Turnbull could have been dismissed solely based on the fact that the complainant did not provide any information:[13]

…to establish that the Plan’s procedures were applied in a differential manner to treatments for MS, or that its assessment process for approval of new procedures was discriminatorily applied (or applied at all, given that there was no evidence that any application had actually been made in regard to the Procedure or associated diagnostic services).

[106] Similarly, I am not satisfied that Ms. Sokolova has raised her claim out of the realm of conjecture that the Ministry’s procedures were applied in a different manner with respect to treatments for MS or that the Ministry’s assessment process for including a new fee in the Payment Schedule was discriminatorily applied.

[107] Ms. Sokolova argues that AHSCT is not experimental and provides extensive evidence on the effectiveness of AHSCT treatment for MS patients.

[108] I am not tasked in this application to determine if AHSCT is or is not an effective treatment for MS or whether it should or should not be on the Payment Schedule. Nor am I tasked with determining whether or not AHSCT treatment for MS patients is “experimental”.

[109] I accept based on the evidence before me that AHSCT for MS patients has not yet made it onto the Payment Schedule because the Ministry considers it experimental medicine for the purposes of requiring an application to have it added to the Payment Schedule.

[110] The Payment Schedule sets out the following:[14]

New therapies and procedures which have been described elsewhere may or may not be deemed to be experimental for the purposes of determining eligibility for payment by MSP.

[111] In my view, the Ministry’s consideration that AHSCT for MS patients was a “new procedure or therapy” requiring an application to be added to the Payment Schedule is supportable by the evidence on this application.

[112] AHSCT for MS patients is not being performed by physicians in the Province, publicly or privately.[15]

[113] At the material time, the only AHSCT treatment for MS patients available in Canada was to be part of a clinical trial at Ottawa Hospital.

[114] The Pirogov’s National Medical Surgical Center’s AHSCT General Information Booklet, where Ms. Sokolova underwent ASHCT treatment, states that “ASHCT is proposed as a new and promising therapy for autoimmune diseases (AID) patients, including multiple sclerosis (MS).”[16] (my emphasis)

[115] The reason AHSCT for MS patients has not been put on the Payment Schedule, the Ministry argues, is not because of any discriminatory reason but because experimental therapies as a policy are not funded by the MSP given they “present unnecessary risks for the patient, are inconsistent with evidence-based decision-making, and are not a wise use of public resources.”[17]

[116] The MPA does not require that all treatments, effective or not, be funded. The Province is free to target the programs and benefits it wishes to fund as a matter of public policy, provided the benefit is not conferred in a discriminatory manner.[18]

[117] I am satisfied there is no reasonable prospect Ms. Sokolova will establish at a hearing that her sex and/or disability were a factor in any alleged adverse treatment regarding the Ministry’s failure to fund AHSCT treatment for MS patients.

Failure to fund fertility preservation

[118] Ms. Sokolova argues that sex and her disability were factors in the adverse treatment she suffered because:

The denial of fertility preservation treatment to women with MS hearkens back to a time when women with disabilities were forcibly steralized [sic] for eugenic purposes, perpetuates stereotypes and denies them the right to have a family.

[119] Ms. Sokolova has not provided any materials to satisfy me that there is any evidence beyond conjecture to support this argument.

[120] Ms. Sokolova also argues that the “service…customarily available to the public” as per s.8 of the Code in this case are “healthcare services” and should not be narrowly characterized as “fertility preservation”.

[121] While the Ministry for the purposes of this application does not dispute that the service customarily provided to the public are “healthcare services”, it relies on Chung v. British Columbia 2023 BCCA 294, leave to SCC denied [2023] S.C.C.A. No. 403 [Chung] for the principle that the exclusion of a particular benefit cannot, without more, be viewed as an adverse distinction based on an enumerated ground.[19]

[122] I accept that the service that is customarily offered to the public in this case by the Ministry are healthcare services. However, I don’t accept that the MPA requires the Province to provide all manner of healthcare services.

[123] The MPA’s purpose, in part, is to ensure a “fiscally sustainable health care system”.[20] This requires the Province to make choices on how limited resources are allocated.

[124] At the material time, no one in the Province received funding through MSP for fertility preservation. The Province’s Health Minister, Adrian Dix, stated the following about the government’s lack of funding for fertility preservation:[21]

It’s an issue. I don’t reject that and that we don’t have it yet. But that doesn’t mean we’re not looking at it….You have to, when you’re developing new programs, look at, obviously, issues of cost…and also the capacity of the system.

[125] Evidence on this application sets out that fertility preservation for one cycle can cost as follows in British Columbia:[22]

Embryo Freezing – $13,000-$20,000
Medications – $3,000-$8,000
Storage – $300-$500 per year

[126] In my view the Tribunal’s comments in Hasek v. British Columbia (Ministry of Health) 2018 BCHRT 187 at paras. 78-79 are apposite:

78 It is well settled that human rights law does not impose a positive obligation on government to provide a service. Rather, once government chooses to provide a service, it must not do so in a discriminatory manner. This was set out by the Supreme Court of Canada in Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78 [Auton] and in Hodge v. Canada (Minister of Human Resources Development, 2004 SCC 65 [Hodge]. While Auton and Hodge are both cases decided under s. 15 of the Charter of Rights and Freedoms, the principles articulated in these decisions have been applied by this Tribunal: Hoffman and another v. B.C. (Ministry of Social Development) and another, 2012 BCHRT 187, at para. 80.

79 What flows from Auton, Hodge and the Tribunal’s reasoning in Hoffman is that the Ministry is under no obligation to provide a publicly funded immunization program; however, once it chooses to do so, it must not do so in a discriminatory way.

[127] Similarly, in Ms. Sokolova’s case, the Ministry was under no obligation to provide publicly funded fertility preservation and as in Chung, the exclusion of a particular benefit cannot, without more, establish a nexus between Ms. Sokolova’s sex and/or disability and any adverse effects.

[128] The evidence on this application does not satisfy me that Ms. Sokolova has raised her claim that her protected characteristics were a factor in the adverse impact suffered out of the realm of conjecture.

4. Bona Fide and Reasonable Justification

[129] Even if I had concluded Ms. Sokolova raised all the elements of a prima facie case out of the realm of conjecture, I would dismiss her complaint because the Ministry is reasonably certain to establish a defence of a bona fide and reasonable justification for its decisions.

[130] Section 8(1) of the Code does not provide an absolute entitlement to service. Discrimination in service, on the ground of sex or disability, is prohibited when done without a bona fide and reasonable justification.[23]

[131] The essence of the Ministry’s defence is that it had bona fide and reasonable justification for its decisions and it made no distinction with respect to the treatments available to individuals with MS, or with respect to fertility treatments, on the basis of disability, sex or otherwise.

[132] The evidence demonstrated that the Ministry makes policy decisions about what to fund as per the MPA and the PSA. The Ministry must ensure the long-term financial sustainability of the health care system.

[133] I disagree with Ms. Sokolova’s argument that the Ministry has made no policy decision with respect to AHSCT. The Ministry considers AHSCT treatment for MS patients to be experimental medicine for the purposes of requiring an application to be added to the Payment Schedule.

[134] On the evidence before me I am satisfied the Ministry is reasonably certain to prove a non-discriminatory explanation for its decisions regarding the switch from Rituximab/Rituxan to Truxima, requiring an application for funding of AHSCT treatment for MS patients, and initially providing no funding for fertility preservation.

[135] I am satisfied that Ms. Sokolova has no reasonable prospect of success in demonstrating that the Ministry will be unable to establish a bona fide and reasonable justification for denying the services she seeks. In these circumstances, denying service on the grounds of legitimate public policy within the statutory framework of the MPA and PSA is sufficient to prove a bona fide justification.

IV CONCLUSION

[136] The Tribunal has discretion as part of its gate-keeping function to remove complaints that do not warrant the time and expense of a hearing. This is such a case.

[137] The Ministry’s application to dismiss Ms. Sokolova’s complaint based on s. 27(1)(c) is granted.

Christopher J. Foy
Tribunal Member

[1] RSBC 1996, c.286 s.3

[2] SBC 2012, c. 22

[3] Ministry of Health, Medical Services Commission Payment Schedule, dated March 31, 2023, C.6 “Experimental Medicine”. Note: There is no material difference in “Experimental Medicine” section in the May 1, 2020 Medical Services Commission Payment Schedule.

[4] Ministry of Health, Medical Services Commission Payment Schedule, dated March 31, 2023, C.2

[5] Ministry of Health, Medical Services Commission Payment Schedule, dated March 31, 2023, C.6 “Experimental Medicine”. Note: There is no material difference in the “Experimental Medicine” section in the May 1, 2020 Medical Services Commission Payment Schedule.

[6] Hasek v. British Columbia (Ministry of Health) 2018 BCHRT 187 at para. 75

[7] Biosimilars Initiative, Pharmacy Guide – Rituximab at p. 8

[8] Affidavit #2 of M. Dona Perera at Exhibit “D”.

[9] Biosimilars Initiative, Pharmacy Guide – Rituximab at p. 3

[10] Affidavit #2 of M. Dona Perera at Exhibit “C”.

[11] Statistics Canada, Health Reports: “Multiple sclerosis: Prevalence and impact” at p. 3

[12] Complaint

[13] Turnbull at para. 98

[14] Ministry of Health, Medical Services Commission Payment Schedule, dated March 31, 2023, C.6

[15] Affidavit #1 of Elanna Eagle, Director-LFP Payment Schedule & Systems, Health Sector Workforce and Beneficiary Services Division, Compensation Policy & Program

[16] Pirogov’s National Medical Surgical Center’s AHSCT General Information Booklet at p. 2

[17] Affidavit #1 of Elanna Eagle, Director-LFP Payment Schedule & Systems, Health Sector Workforce and Beneficiary Services Division, Compensation Policy & Program

[18] Hoffman and another v. B.C. (Ministry of Social Development) and another, 2012 BCHRT 187 at para. 80

[19] Chung at para. 83

[20] MPA s.2

[21] “Infertility Awareness Week: B.C. lags behind most of Canada for treatment funding” CTV News: M. Sokolova’s materials at tab 80

[22] “Cost of fertility preservation in Canada”: M. Sokolova’s materials at tab 81 [23]Gorda v. Vancouver Coastal Health Authority 2013 BCHRT 25 at para. 94