BC Human Rights Tribunal Hearing

Prior to the hearing, a case conference held on November 22nd turned out to be just a procedural discussion, at which the Tribunal Member (TM), Barbara Korenkiewitz, who was to preside and eventually render a decision, laid some ground rules, such as how the witnesses were to be scheduled and how the meeting would be structured in terms of timing and procedure. She also requested that a joint book of documents be prepared for her, including all submissions that had been made and were to be included in the hearing. The Respondent's lawyers agreed to do that, and I was to submit any new documentation from my side to them for inclusion.

The Tribunal Hearing, which was booked for a week, actually lasted barely two full days, although the second day was spread over two mornings - Tuesday the 5th, and Wednesday the 6th of December. The five days were blocked off at the request of the respondent team - and I use that term advisedly, as there were five of them on the Ministry's side of the five metre long board table.

The physical set up was straightforward: at one end of the table was the TM, who was essentially the adjudicator, the other end was the witness seat, and I had one long side to myself as the complainant, facing on the other side, the two lawyers with their two paralegals/clerk-secretaries who took copious notes, and a gentleman whom I only managed to identify at the end of the proceedings by asking him who he was. He turned out to be Brian Sagar, the new Executive Director for Public Health Services, who was too new in the position to testify at the hearing, so he was there as an observer. The retiring Executive Director, Warren O'Briain, is moving on to an equivalent position in Mental Health and Substance Use, but provided testimony as a witness in his former position. This individual was the only other male in the room. So the whole of the respondent team plus two out of the three expert witnesses were all ladies. I was surprise that the case manager, who had handled all the correspondence and effectively controlled the documentation, was not present. I should note that the second lawyer assigned to the case, Rochelle Pauls, did most of the talking during the hearing, and she was much more animated than Ms. Pritchard, who at this point was obviously sick and very subdued.

I was asked for an opening statement, and I simply alleged age discrimination on the grounds that all childhood, and most other vaccinations, such as 'flu shots, were by and large provided at no direct cost to the patient, while shingles vaccination was not. The respondent's opening statement, copies of which were provided to everyone, ran to twenty-nine individual points on seven pages, ending with: "The Province's position is that the Complainant will not be able to establish prima facie discrimination".

I was the only witness on my side, so I effectively wore two hats, and took the witness stand to be cross examined - very briefly, since there was virtually no evidence to process. As I neglected to include all the preliminaries and formalities in the original estimate of hearing time my complaint would require, I wound up actually taking up close to half an hour by the time I had responded to a few questions from the TM, which included stating my age.  I returned to my spot on the empty complainant side of the table while the counsel for the respondent, who initially took turns asking questions and making presentations, summoned their first witness: Dr. Bonnie Henry, Deputy Provincial Health Officer for BC. For the sake of brevity, I shall just say that the two or so hours of questioning covered details of the Public Health Act, the functioning and structure of the Ministry of Health with respect to the Provincial Immunization Program and a host of factors involved in the functioning of the various branches and agencies such as the BC Centre for Disease Control. The next witness was the ex-Executive Director of Public Health Services, and his testimony, which covered much of the same ground in more detail, took up pretty well the rest of the day, so that the second day, which only lasted about three hours, was taken up with the third witness, Dr. Monika Naus, who was the only witness who is not resident in Victoria. She is an Associate Professor at UBC as well as being a Medical Director of the BC Centre for Disease Control, and her 71 page resume (abbreviated to 36 pages for the hearing) speaks volumes to her expertise and dedication to her field. She provided further detail for the functioning and choice of vaccines that are provided by the Ministry, as well as a historical perspective on the development of policies. Her testimony was completed shortly after noon of the second day, at which point we retired to prepare closing statements for the following day.

The closings statements on Wednesday morning were in much the same proportions as the rest of the hearing. I prepared a one page statement which took about ten minutes to present, and then there were maybe another ten minutes of questions. I quoted four principles of the Canada Health Act which are being breached, and pointed out the lack of data on the cost of treatment of shingles. I also stated that while I was pleased that my complaint elicited a serious response, the disproportionate magnitude of the resources deployed by the Ministry of Health in this action is a clear denial of transparency and accountability.

The respondent's closing statement, copies of which were provided to all, together with a four inch thick binder labelled "Book of Authorities of the Respondent", took close to three hours to present, and covered 108 points on 23 pages. Needless to say, it summarized everything that had been discussed and then some, including all the points I had made, as well as references to witness testimony and background documentation. Of course all this was to deny my cause any shred of credibility or chance of consideration. It ended on an untruthful note, stating that I had brought the complaint up only on my own behalf, and not on anyone else's. This is clearly a fabrication by Ms. Pauls, and flatly contradicts what I stated on page 6 of the complaint form filed at the outset of this process, where I indicated I was acting in the interest of all the seniors of the province. The very last item dealt with my claim for compensation in the amount that had been spent on this whole process by the respondent, which I had thrown in as a red herring, that was swallowed by the respondent's lawyers - hook, line, and sinker.

The hearing ended with the TM telling us that her report would be submitted within ninety days, so it will be next March before the whole process winds up - well over three years from the start. Has it accomplished anything? Well, that's debatable, but it has shown me quite clearly that there is definitely a lot wrong with our healthcare system, and other branches of our provincial government require a good deal of scrutiny and economic evaluation. I may at some stage try and tabulate all the issues that this process has revealed, but the one overwhelming impression that I am left with is the excessive, and obviously expensive, response to what started as a few well founded gripes about publicly funded health care. While I may not have been totally serious about my compensation claim, what I am deadly serious about is the sheer cost of this exercise, and how my hard earned tax dollars are being misspent. I believe if an auditor were charged with determining the costs, she would find that many of them are very difficult to quantify. I am left with the impression that many of the resources that were deployed against me were so directed simply because they exist, and do not have a clear mandate or definition of purpose. I don't believe there was any consideration as to whether the process was justified or reasonable.

I should also add that the future of the current vaccine, Zostavax, is essentially over. Being a live adjuvant vaccine, its effectiveness and efficacy declines with time as well as the age of the recipient, so that for a 70 year old vaccinated at age 65 it is down to about 14%. A comparable decline does not apply to Shingrix, a new vaccine approved in Canada in October, which is over 90% efficacious and apparently stays that way, so it will totally displace Zostavax. Some of the statistics quoted in the preceding linked article seem to indicate that the Ministry's contention that the cost of shingles vaccination does not justify the benefits is now completely at odds with the facts. With 130,000 cases of shingles each year in Canada, leading to more than 250,000 doctors visits, and about 2,000 requiring hospitalization, the $2 million estimated annual cost for British Columbia, assuming we represent around a quarter of the national numbers, could be paid back in less than six months, without any value placed on pain and suffering.

Although I tried to attract media attention to the hearing by emailing every media contact I could find, they had no representatives at any of the sessions. However, I received some favourable coverage in the Vancouver Sun the following weekend.