Elizabeth Woodwork v. Canadian Blood Services, 2009 HRTO 1027

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Woodwork

Applicant

-and-

Canadian Blood Services

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: July 13, 2009

Citation: 2009 HRTO 1027

Indexed as: Woodwork v. Canadian Blood Services

WRITTEN SUBMISSIONS BY

Elizabeth Woodwork, Applicant ) On Her Own Behalf

Canadian Blood Services, Respondent ) Mary J. Gleason and ) Anthony R. Moffatt, ) Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, alleging discrimination on the basis of disability in goods, services and facilities, as a result of the respondent’s alleged refusal to permit her to act as a stem cell donor as a result of various physical disabilities. She has also filed a Request to Expedite and a Request for Interim Remedy.

2The respondent, through counsel, advises that its correct name is Canadian Blood Services. The style of cause is amended accordingly.

3The respondent filed two Requests for Order During Proceedings. It asks that the Application be dismissed as outside the jurisdiction of the Tribunal. It argues that the regulation of blood products donation, including donor screening and assessment, falls within exclusive federal jurisdiction under the federal power over criminal law and procedure in criminal matters in s. 91(27) of the Constitution Act, 1867. It has cited legislation and case law in support of that proposition. It asks that it not be required to respond to the Application, the Request to Expedite, or the Request for Interim Remedy until the issue of jurisdiction is determined.

4The respondent states that there have been decisions of the Ontario Human Rights Commission (under the old human rights system) and the British Columbia Human Rights Tribunal (Neudorf v. Canadian Blood Services, 2005 B.C.H.R.T.D. No. 265 (QL)) that support its contention that this matter falls under federal jurisdiction. It has also cited a decision of the Manitoba Human Rights Commission that concluded that a complaint regarding the donation of blood fell under provincial jurisdiction. A review of the materials makes it clear that this case raises, among other issues of federalism, questions about the application of the doctrines of paramountcy and interjurisdictional immunity under ss. 91 and 92 of the Constitution Act, 1867, which were recently the subject of considerable discussion by the Supreme Court of Canada in Canadian Western Bank v. Alberta, 2007 SCC 22 and British Columbia (Attorney General) v. Lafarge, 2007 SCC 23.

5The applicant states that she has contacted the Canadian Human Rights Commission and that she was told that the matter falls under provincial jurisdiction. She has also advised the Tribunal that she has a disability which requires accommodation. She asks that a hearing be conducted by telephone, rather than in writing as the respondent requests, and that she be provided with the questions in advance to prepare her answer.

6I agree with the respondent that the issue of jurisdiction should be determined prior to the Request to Expedite and the Request for Interim Remedy. The Tribunal must determine whether, as a result of the principles of Canadian federalism, the Code applies to the allegations of the applicant. In my view, this is a significant issue that should have full argument at an in-person oral hearing. The Tribunal will work to accommodate the applicant’s disabilities at that hearing. If the applicant wishes to request specific accommodation for the hearing, she may do so though the Registrar, as set out in the Tribunal’s policy on accommodation. Moreover, if there is a particular reason that a telephone rather than in-person hearing is required because of the nature of her disabilities, she should advise the Registrar immediately.

7Accordingly, I make the following direction:

(1) The Registrar shall schedule this matter for a one-day hearing. The question to be determined shall be: As a result of the division of powers between the federal and provincial governments, do the allegations made by the applicant fall under provincial jurisdiction and therefore under s. 1 of the Code?

(2) In view of the potential significance of the issues raised, the Tribunal shall send a copy of the Application, the respondent’s Requests for Order and supporting materials, and this Interim Decision to the following:

(i) The Ontario Human Rights Commission;

(ii) The Attorney General of Ontario, Constitutional Law Branch, 4^th Floor, 720 Bay Street, Toronto, Ontario M5G 2K1; and

(iii) The Attorney General of Canada, Suite 3400, Exchange Tower, Box 36, First Canadian Place, Toronto, Ontario, M5X 1K6.

(3) If any party seeks to intervene in this matter, it shall file its Request within 15 days of the date of this decision.

(4) Any materials upon which a party intends to rely at the hearing, including case law, shall be delivered to the other parties and filed no later than two weeks prior to the hearing.

8The Tribunal draws the applicant’s attention to the Applicant’s Guide, available on the Tribunal’s website at www.hrto.ca or from the Registrar’s office. The Guide, at pages 2–3, provides a list of resources available to applicants appearing before the Tribunal.

9I am not seized.