B.C. tribunal dismisses MS treatment and fertility-funding discrimination complaint

The B.C. Human Rights Tribunal has dismissed a woman’s challenge to provincial funding decisions involving multiple sclerosis drugs, a stem-cell treatment and fertility preservation, finding no reasonable prospect of proving that sex or disability was a factor in the alleged adverse treatment.

Tribunal member Christopher J. Foy granted the Ministry of Health’s dismissal application in Sokolova v. BC Ministry of Health, 2026 BCHRT 187, issued August 25 and posted September 2. The decision concerns an individual complaint arising from treatment and coverage circumstances in 2020 and 2021, not a class proceeding or a determination of current funding entitlements.

Maria Sokolova, who has multiple sclerosis, challenged the move from PharmaCare coverage of Rituxan to biosimilar medications, the lack of Medical Services Plan funding for autologous hematopoietic stem-cell transplantation, known as AHSCT, and the lack of fertility-preservation coverage at the relevant time. She alleged that the choices reflected historic discrimination against women and people with disabilities.

The Ministry denied discrimination. It said coverage decisions followed statutory processes, expert recommendations and resource-allocation choices rather than distinctions based on sex or disability. It also argued that it was reasonably certain to establish a bona fide and reasonable justification if the complaint proceeded.

A preliminary threshold, not a full hearing

Under section 27(1)(c) of the Human Rights Code, the Ministry had to show that the complaint had no reasonable prospect of success. Sokolova did not have to prove her case at this stage, but needed some evidence taking each disputed element beyond speculation. A reasonably certain defence could also justify dismissal without a hearing.

There was no dispute that sex and physical disability were protected characteristics. The tribunal also accepted that the alleged adverse impacts cleared the preliminary threshold. Paying for fertility preservation was an adverse impact because it was not then publicly funded, while the risks of travelling abroad for treatment during the pandemic supported the AHSCT aspect of the claim.

Foy was less persuaded that the AHSCT expense itself established an adverse impact because Sokolova had not applied to have the treatment considered an insured service. But that did not end the analysis. He also accepted that uncertainty over the biosimilar switch could qualify as an adverse impact even though she had never received Truxima, the biosimilar at issue.

The decisive problem was the next element: a connection between those impacts and a protected characteristic. A disagreement with health policy or the exclusion of a desired benefit did not, on its own, establish that connection.

Biosimilar evidence and the funding process

Sokolova argued that treatment rules were arbitrary and that funding a biosimilar rested on an unsupported assumption about effectiveness. She criticized an approach that she said delayed access to more effective treatments, while acknowledging that her own drug treatment began with a higher-efficacy medication.

The tribunal instead relied on the evidence of Health Canada’s authorization of Truxima, research comparing its efficacy and safety with the originator drug, and the province’s cost-saving rationale. The evidence identified a 30 per cent reduction in provincial costs from the switch. Foy found no reasonable prospect of showing that sex or disability was a factor in that decision.

AHSCT raised a different question. The procedure returns a patient’s previously collected stem cells after chemotherapy or immune-suppressing treatment. Sokolova had obtained it abroad at her own expense and supplied extensive evidence that she said demonstrated its effectiveness for MS.

Foy expressly declined to decide whether AHSCT was effective, whether it should be listed for payment, or whether it was experimental. The Ministry treated it as a new or experimental therapy for the purpose of requiring an application before it could be added to the payment schedule. No application to add AHSCT for MS patients had been made through the process described in the reasons.

That process involved proposals from medical practitioners through the appropriate Doctors of BC section and tariff committee, with the Medical Services Commission deciding possible inclusion. The tribunal found no evidence taking beyond speculation the claim that the process had been applied differently to MS treatments or used discriminatorily in this case.

Disproportionate impact needed a supported connection

Sokolova argued that women were disproportionately affected because more women than men have MS, and that stereotypes about women and disability explained the funding choices. The tribunal accepted that evidence of disproportionate impact can support a discrimination claim, but said statistical correlation alone is not always enough. Here, it found insufficient evidence connecting that disparity to the challenged exclusions.

The fertility-preservation claim followed a similar course. Sokolova argued that the relevant public service was health care generally, not a narrowly defined fertility procedure, and that denying preservation treatment perpetuated stereotypes affecting women with disabilities. Foy accepted the broader description of the service but found the alleged discriminatory connection remained speculative.

The reasons record that MSP did not fund fertility preservation for anyone at the relevant time. Drawing on earlier decisions, Foy explained that excluding a particular benefit does not, without more, establish discrimination. Governments need not fund every treatment, but benefits they do provide must be offered without discrimination.

An alternative justification and a limited result

Foy also addressed the Ministry’s alternative defence. Even if the necessary elements of the discrimination claim had cleared the preliminary threshold, he found the Ministry reasonably certain to justify its decisions within the statutory framework governing medical services and pharmaceuticals.

The reasons linked that conclusion to evidence about the biosimilar switch, the application requirement for AHSCT and the initial lack of fertility-preservation funding, together with the statutory objective of a financially sustainable health system. The ruling did not say that invoking costs automatically answers every discrimination claim.

The entire individual complaint was dismissed without a full hearing. The tribunal made no order expanding coverage or compensating Sokolova. Its reasoning distinguishes the existence of a difficult or costly treatment choice from the evidence needed to show a viable discrimination claim, while leaving the medical effectiveness and experimental status of AHSCT undecided.