A B.C. Supreme Court judge has ordered a new human-rights hearing into whether or not the B.C. Medical Services Plan discriminates against men.

In a decision posted on the B.C. Supreme Court Web site this week, Justice Robert Johnston ruled that the B.C. Human Rights Tribunal member Kurt Neuenfeldt erred in dismissing a complaint in 2008 by Victoria lawyer Laurence Armstrong.

In Neuenfeldt's 91-page decision, he determined in 2008 that Armstrong didn’t establish a “prima facie” case of discrimination. The complaint concerned men having to pay for prostate-cancer-screening tests, whereas women not being required to pay for screening tests for breast and cervical cancer.

Johnston’s June 29 decision stated that Neuenfeldt erred by focusing on “medical necessity" and examining "sound epidemiological and public health considerations".

“In doing so, he appears to have leapt from the preliminary stage, where he should have decided whether there was a case for the respondent to meet on the question of sex as a factor in the funding decision, to the ultimate issue to be decided, that is, whether there was discrimination as defined under the Code,” Johnston wrote in his ruling.

Men over 40 must pay $30 for a PSA screening test for prostate cancer. Women do not have to pay a fee for a Papanicolaou test (“Pap test”) for cervical cancer. Women also don't have to pay for mammograms to detect breast cancer between the ages of 40 and 79.

In 2007, the Straight reported that Armstrong couldn’t find a plaintiff to file a discrimination complaint against the B.C. government, so he took the case on his own behalf.

The article noted that approximately 500 men die each year from prostate cancer in B.C.; 700 women die each year from cervical or breast cancer.

Neuenfeldt’s ruling on prima facie discrimination meant that the tribunal did not proceed to the next stage in law, which would have shifted the onus to the Ministry of Health to demonstrate a reasonable justification for not funding PSA screening tests.

As a result of the B.C. Supreme Court decision, the tribunal will now have to address this issue unless the government successfully appeals Johnston's ruling.

Under section 8 of the British Columbia Human Rights Code, a person must not, without a bona fide and reasonable justification, deny a person or a class of persons any accommodation, service, or facility customarily available to the public.

“Governments should have no special status when it comes to human rights complaints,” Johnston wrote. “Where s. 1 of the Code defines discrimination, it does so for government equally as for anyone else.”