Rogers v. Canadian Northern Shield Insurance Company and others (No. 2),
2024 BCHRT 221
Date Issued: July 31, 2024
File: CS-001227
Indexed as: Rogers v. Canadian Northern Shield Insurance Company and others (No. 2),
2024 BCHRT 221
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:
British Columbia Automobile Association (BCAA), Specialty Program Group Canada Inc. o/a Cansure, Echelon Insurance, Special Risk Insurance Managers (SRIM), Premier Marine Insurance Managers (West) Inc., Family Insurance Solutions Inc., Mutual Fire Company of Britihs Columbia, Intact Insurance Company (Intact), Elite Insurance Company, Guardian Risk Managers Ltd., Peace Hills Insurance, Canadian Northern Shield Insurance Company, Interior Savings, and Aviva Insurance Company
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Devyn Cousineau
On her own behalf: Lorelei Rogers
Counsel for Special Risk Insurance Managers: Karina Alibhai
Counsel for Specialty Program Group Canada Inc. o/a Cansure: Hollis Bromley
Counsel for Premier Marine Insurance Managers Group (West) Inc.: Leslie Whittaker
Counsel for Guardian Risk Managers: David J. Bell
I INTRODUCTION
[1] This decision is about whether to dismiss Lorelei Rogers’ human rights complaint against four companies: Special Risk Insurance Managers [SRIM], Specialty Program Group Canada Inc. o/a Cansure [Cansure], Premier Marine Insurance Managers Group (West) Inc. [Premier], and Guardian Risk Managers [Guardian]. These companies are Managing General Agents, and I will refer to them collectively as the MGAs.
[2] Dr. Rogers has filed this human rights complaint against 14 insurance-related companies. She says that she has disabilities that require her to use cannabis, and that the most affordable and highest quality option is for her to grow the cannabis herself. In or around September 2019, she disclosed to her insurance broker that she had been growing cannabis in an outbuilding on her property. The broker says Dr. Rogers also disclosed that she was operating an Airbnb on the property. Based on this information, Dr. Rogers’ insurer cancelled her home insurance. The broker contacted other insurance-related companies and was unable to find an insurer willing to insure Dr. Rogers’ property. Dr. Rogers says that this denial of insurance is discrimination based on her disability, in violation of s. 8 of the Human Rights Code.
[3] The hearing of the complaint is underway. Dr. Rogers has presented her case, and the Respondents are scheduled to present their cases in August. In the interim, I have allowed the MGAs to bring an application to dismiss the complaint against them on the basis that it does not further the purposes of the Codeto proceed: Code,s. 27(1)(d)(ii). The MGAs say that they have no power to decide what risks an insurance company will provide coverage for. They say that they cannot provide the systemic remedy that Dr. Rogers is seeking in the complaint, and that the issue Dr. Rogers is raising can be more directly and efficiently addressed through her complaint against the insurance companies. Dr. Rogers opposes the application, arguing that MGAs are a vital part of the insurance system in BC and must be held responsible to provide their services free of discrimination.
[4] For the following reasons, I am satisfied that it does not further the Code’spurposes to proceed against the MGAs. That part of Dr. Rogers’ complaint is dismissed. Her allegations will proceed against the insurance broker and nine insurance companies.
II DECISION
[5] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code. The purposes of the Codeare remedial: Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84 at para. 15. They are listed in s. 3:
(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;
(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
(c) to prevent discrimination prohibited by this Code;
(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;
(e) to provide a means of redress for those persons who are discriminated against contrary to this Code.
[6] These purposes reflect both private and public interests. Broadly, the Codeaims to identify and eliminate conditions which cause discrimination. More narrowly, the Codeaims to ensure that people who are discriminated against have access to a remedy: Carter v. Travalex Canada Ltd,2009 BCCA 180 at para. 36. The available remedies are set out in s. 37 of the Code, and include systemic measures to identify and eliminate discrimination, as well as private measures to secure financial compensation for the costs of discrimination.
[7] The purposes of the Codego beyond the individual interests of parties to a complaint: Dar Santos v. UBC, 2003 BCHRT 73 at para. 59. They extend to ensure the effectiveness of the human rights system. This Tribunal is an integral part of that system. It must fulfill the Code’sremedial aims by adjudicating a large volume of human rights complaints with limited resources: Tillis v. Pacific Western Brewing and Komatsu, 2005 BCHRT 433 at paras. 15-17. The purposes of the Code,then, must account for the efficiency and responsiveness of the system: Carter at para. 42; Dar Santosat para. 59.
[8] In this context, it may not further the purposes of the Codeto proceed with complaints that have already been effectively remedied, or where there is a more efficient way to achieve a remedy: Williamson v. Mount Seymour Park Housing Co-operative and others, 2005 BCHRT 334 at para. 11. In my view, that is the case here.
[9] Dr. Rogers’ complaint is that it is discriminatory for insurance companies not to insure her property because she was growing medical cannabis. In addition to monetary compensation, she is asking for a declaration that this conduct is discriminatory, and an order that the Respondents cease and refrain from similar contraventions in future. She seeks a systemic order that the Respondents be required to “[p]rovide insurance for disabled person to grow medical marijuana” at a cost equivalent to “what was previously charged”.
[10] Dr. Rogers’ specific allegations against the MGAs arise because of inquiries made by her insurance broker. The broker says she contacted the MGAs to inquire whether they could provide home insurance for Dr. Rogers. She says she explained that Dr. Rogers had a licensed medical marijuana grow-op in a separate outbuilding on her property, and was operating an Airbnb in her home. She says that all the MGAs declined to provide insurance without requesting further information.
[11] Critically, it is undisputed that the MGAs are not insurance companies. They are not responsible for assessing which conditions to insure. Rather, they contract with insurers to provide certain business functions on behalf of the insurer. They have underwriting authority which they exercise based on criteria set by the insurer. They assess whether a proposed risk falls within the parameters set by the insurer. Their authority is purely contractual and is limited to the authority granted by insurers. The MGAs have each submitted affidavit evidence explaining that, under their contracts with insurers, they do not have authority to underwrite policies for properties where more than four – or in some cases, any – cannabis plants are grown.
[12] In this situation, the MGAs are not the parties best placed to remedy the alleged discrimination in this case. They cannot change the insurance policies that Dr. Rogers has challenged: only the insurance companies can. Dr. Rogers’ complaint is proceeding against nine insurance companies. If she is successful, then the remedial purposes of the Code will be achieved by the Tribunal’s orders against the insurance companies. Proceeding against the MGAs will only prolong the length of an already lengthy hearing, taking up the Tribunal’s limited resources to adjudicate a matter with little or no remedial benefit. This does not further the purposes of the Code.
[13] I acknowledge Dr. Rogers’ argument that MGAs are an integral part of the insurance system in BC, and there is evidence that these MGAs refused to offer her insurance. Dr. Rogers argues that there are steps that the MGAs could take to ensure their services are offered without discrimination, such as contracting with different insurance companies which would insure properties growing cannabis, advocating for the rights of people with disabilities, or asking the broker for more information. However, even assuming Dr. Rogers is correct, this is not the most direct or efficient route for addressing the issue she raises in her complaint. In my view, the Tribunal’s limited resources are better spent addressing Dr. Rogers’ complaint at its root, by focusing on the allegations against the insurance companies and broker. If I find there has been discrimination, Dr. Rogers will have access to a remedy and the purposes of the Code will be fulfilled.
[14] This decision should not be taken to suggest that an MGA could never be liable for a discriminatory insurance policy. Rather, in the unique circumstances of this complaint – and especially the fact that the issue will be more directly addressed in the complaint against the remaining nine insurance companies – it does not further the Code’s purposes for the parties and Tribunal to expend further resources adjudicating the complaint against the MGAs.
III CONCLUSION
[15] Dr. Rogers’ complaint against SRIM, Cansure, Guardian, and Premier is dismissed.
Devyn Cousineau
Vice Chair
Human Rights Tribunal