HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lisa MacDonald
Applicant
-and-
Downtown Health Club for Women, Fulton Fitness and John Fulton
Respondents
INTERIM DECISION
Adjudicator: Kaye Joachim
Indexed as: MacDonald v. Downtown Health Club for Women
written submissions by
Lisa MacDonald, Applicant ) Bradley J. Troup,
) Counsel
Downtown Health Club for Women, ) Andrew J. Roman,
Fulton Fitness and John Fulton, ) Gita Anand and
Respondents ) Erik Marshall, Counsel
1This is an Application filed under s. 53(3) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”). The complaint which underlies the current Application was filed with the Ontario Human Rights Commission on August 4, 2006 and abandoned upon the filing of the present Application with the Tribunal on November 18, 2008. A Case Resolution Conference scheduled for June 15, 2009 was adjourned on consent.
2The purpose of this Interim Decision is to deal with the respondents’ requests for production and particulars.
3In accordance with the Tribunal’s Rules of Procedure for Transitional Applications (the “Transitional Rules”), the parties filed statements of additional facts and remedies, made disclosure, and filed witnesses statements of the witnesses they intended to call for the hearing scheduled for June 15, 2009.
4This Interim Decision is based on the written submissions filed by the parties, having regard to the Application, the Response, the statements of additional facts, the documents disclosed and the will say statements filed by the parties.
5The applicant self-identifies as a transgendered person. She alleges that she was discriminated against in the provision of services on the basis of sex or sexual orientation contrary to sections 1 and 9 of the Code by the respondents with respect to her request for admission to a women’s only fitness facility in June 2006. The respondents deny that they have breached the applicant’s rights under the Code.
6A brief outline of the factual disputes is warranted to assess the production requests. I emphasize that I have heard no evidence at this stage and the following are merely the allegations set out by the parties:
Applicant’s Allegations
7The applicant met with the personal respondent on June 27, 2006 to discuss applying for membership in the women’s only portion of the gym.
8The applicant revealed that she was a pre-operative transsexual who had been living as a woman for approximately 15 months and was scheduled to have surgery on September 8, 2006. The personal respondent indicated that he would have to obtain legal advice before accepting her application.
9The applicant offered to change prior to coming to the gym and shower offsite to avoid any discomfort for other patrons.
10The applicant repeatedly called the personal respondent to inquire about the status of her application. On July 2, 2006, the respondent advised her that that he had not been able to obtain legal advice and was not going to accept her application.
11On July 17, 2006, the applicant’s legal counsel wrote to the respondents seeking admission to the respondents’ fitness club or the applicant would file a formal human rights complaint.
12The applicant subsequently joined another female only gym in St. Catharines.
13On August 4, 2006, the applicant filed a human rights complaint.
14The applicant is seeking $25,000 in general damages, $10,000 in damages for mental anguish and remedies to ensure future compliance with the Code. There is no free-standing claim for mental anguish any longer and general damages is characterised as monetary compensation for loss arising from infringement.
15The applicant has not submitted any medical information except a sworn affidavit from a physician confirming her transsexual surgery.
Respondents’ allegations
16The personal respondent states that upon being advised that the applicant was still “a guy”, he advised that he needed to obtain legal advice before determining whether to accept the application. He was concerned about other members’ rights and public decency generally.
17The personal respondent suggested the applicant change and shower elsewhere, but the applicant insisted on being allowed to use the toilets which were located inside the women’s change room, directly across from and with a clear view of the shower stalls.
18Two other transgendered individuals visited his fitness club around the same time inquiring about the women’s only facility. The personal respondent suspected that he was being “set up.”
19The respondents will rely on statements from gym members who found the applicant “unpleasant”, “aggressive” and were made “uncomfortable” by unsolicited conversations about the applicant’s transitioning experience.
20On June 28, 2006, the personal respondent contacted the Niagara Regional Police and Peel Regional Police to make inquiries about their policy with respect to transsexual women in custody and was informed that a transsexual person with male anatomy would be treated as a man.
21On June 29, 2006, the personal respondent sought legal advice from a lawyer and from the Ontario Human Rights Commission. Neither was able to provide him with the clarification he sought with respect to his obligations under the Code in this context.
22When the applicant telephoned on July 2, 2006, the personal respondent advised her that he had been unable to obtain the legal advice he sought. At that point, the applicant threatened to take legal action if she were not admitted.
23The personal respondent spoke with an employee of the Commission on July 11, 2006 about the applicant’s specific situation and advised that he was still seeking legal advice.
24The respondents assert that they never denied the applicant admission to their facility but that while they were seeking legal advice the applicant chose to threaten legal action before the membership application was determined.
Production Requests
25The Tribunal has held that parties must disclose non-privileged documents that are “arguably relevant” to an issue in the Application, although the disclosed documents may not necessarily be admitted as relevant at the hearing: Lampi v. Princess House Products Canada, 2008 HRTO 1.
Expert Witness Reports
26The respondents asked for production of the names and curriculum vitae of any intended expert witness. The applicant stated that she had not retained an expert and did not intend to call any expert in this Application. This request is therefore moot.
Medical Records
27The respondents asked for any and all medical information and records relating to any pre-operative and post-operative medical examinations and any psychologists’ or psychiatrists’ assessment regarding the applicant’s transgendered status and suitability for gender changing hormones and surgery.
28The respondents argued that the Application as framed on the basis of sex cannot succeed, although human rights adjudicators have held that discrimination against transgendered individuals can be characterized as discrimination on the basis of disability. See: Hogan v. Ontario (Minister of Health and Long-Term Care), 2006 HRTO 32 ; Forrester v. Peel (Regional Municipality) Police Services Board 2006 HRTO 13; Kavanagh v. Canada (Attorney General), [2001] C.H.R.D. NO. 21; Sheridan v. Sanctuary Investments Ltd. (c.o.b. B.J.’s Lounge), [1999] B.C.H.R.T.D. NO. 43.
29As the only basis upon which the Application can proceed is disability, the respondents argued that they are entitled to production of the applicant’s medical records to establish whether she has a disability known as gender identity disorder. Alternatively, as the Tribunal or a reviewing court may, notwithstanding the applicant’s framing of her Application, decide that the applicant has a disability, the respondents argued that they are entitled to production of the medical records requested. Finally, the respondents argued that the applicant has asserted that she is a transsexual but has not put forward any medical documentation to confirm that status. They assert that such evidence is essential and relevant to the Tribunal’s jurisdiction to hear the Application.
30The applicant argued that she has the right to frame her Application on her own terms, and that she has chosen to frame her Application as discrimination on the basis of sex, and not on the basis of disability. The applicant asserts that the suggestion that her transgender status is the result of a medical “disorder” is offensive to her. Accordingly, she argued that her medical records are not relevant to the Application.
31I will respect the applicant’s approach to framing the issues in the Application. I note it is open for me to find, depending on the evidence, that a transgendered person may experience discrimination on the basis of sex. See: Forrester, supra, Kavanagh, supra, Sheridan, supra, Ontario Human Rights Commission Policy on Discrimination and Harassment because of Gender Identity, March 30, 2000.
32However, the applicant asserted that she was a pre-operative transsexual, with a specific intention to undergo transsexual surgery. Further, she has submitted a medical report confirming that the surgery has taken place. In these circumstances, I find that some of the applicant’s medical records are arguably relevant to the issues in this Application. The applicant is required to provide the following records within 45 days of the date of this Interim Decision:
The medical records from the applicant’s treating physician, if any, who was aware that the applicant was living as a woman and planning to undergo transsexual surgery, from July 2005 until the end of July 2006.
The medical records relating to the applicant’s transsexual surgery.
33The respondents also argued that the applicant has put her emotional and mental health at issue by claiming damages for mental anguish and therefore they are entitled to her medical records to explore whether the distress she suffered was due to reasons other than the alleged discrimination and to assess the applicant’s mental state before and after the alleged discrimination. The applicant responded that she is not relying upon any medical evidence of mental anguish other than her own evidence and therefore her medical records are not relevant.
34In my view, the medical records of any treating practitioners may be arguably relevant to the issue of the applicant’s emotional reaction to the alleged discrimination. However, before ordering production of these documents, I would like to hear from the parties on whether the hearing should be bifurcated to hear the issue of liability separately from the issue of damages, and if so, whether the requested documents are arguably relevant to the issue of liability. The parties shall file written submissions on this issue in accordance with the timelines set out below.
Documents related to “bona fides” of the Application
35The respondents asked for various documents on the basis that they are relevant to the issue of whether or not applicant’s attempt to secure membership was bona fide, or whether she was seeking to “make a point” about discrimination. The respondents relied upon the decision of the British Columbia Human Rights Tribunal in Stopps v. Just Ladies Fitness (Metrotown) Ltd. [2006] B.C.H.R.T.D. NO. 557 at para 113:
In my view, Mr. Stopps went to Just Ladies seeking a service that he knew would be denied; he fully intended to pursue a human right complaint. The human rights system is not to be used to make a point; it is to be used to address discrimination and to further the purposes of the Code so that all can participate in the activities of British Columbia without fear of adverse treatment based on a prohibited ground of discrimination. Allowing Mr. Stopps' complaint would undermine the purposes of the Code and minimize the real and daily discrimination faced by many in our society, including men.
36In that case, the B.C. Tribunal dismissed a complaint by a male who was denied access to a female only gym on the basis that the complainant failed to establish a prima facie case of discrimination because he was not seeking membership in good faith, but was seeking to “make a point” that women’s only facilities were discriminatory. In my view, whether or not the applicant was attempting to make a point by joining a female only gym two months before her gender reassignment surgery is not relevant to the issue whether she faced discrimination in this case.
37The situation of a transgendered individual living in transition while awaiting gender reassignment surgery is significantly different than the situation of the complainant in the Stopps case.
38In my view, it is not relevant in this case whether the applicant was attempting to “make a point” rather than attempting in good faith to join a gym, in light of the vastly different circumstances between this case and the Stopps case.
39Accordingly, I find that the following documents requested by the respondents on the basis that they are arguably relevant to whether the applicant’s interest in the respondent’s fitness club was bona fide, are not arguably relevant to the issues before me:
Any and all documents relating to inquiries at other female only gyms the applicant applied to before and after the events in question;
If the applicant is currently a member of a gym or fitness club, any and all documents attesting to how often she attends that gym or fitness club;
Any and all documents relating to any other complaints the applicant has made against any other party to the Commission, the Tribunal or the Canadian Human Rights Tribunal.
Counselling Notes
40The respondents sought any and all documents relating to the applicant’s counselling sessions at Warren Shepell. The applicant’s representative initially indicated that that he would produce these documents as he understood that the applicant had sought counselling in respect of the denial of membership in June 2006. The applicant has since advised that although she had sought counselling at Warren Shepell, she did not discuss her feelings in response to the events with the respondents.
41As the applicant has advised that she did not discuss the events surrounding this Application in her counselling sessions, they are not arguably relevant to the issue of liability.
Restraining Order
42The respondents sought any and all documents relating to any restraining order ever issued against the applicant so they can verify the personal respondent’s “intuitive response” that giving the applicant “unrestricted access to a female-only locker room/change room could have had negative consequences for the female members of the Respondents’ gym.” The respondents asserted that these documents are also relevant and necessary because they may shed light on the applicant’s mental state and tendency to provoke confrontations with people.
43While the applicant denied knowledge of any restraining order, she also opposed the request on the basis of relevance. As I have the authority to order the applicant to make further inquiries on this matter, I will address this request despite the applicant’s current unawareness of the existence of any restraining order.
44I fail to perceive any arguable relevance between the existence of a restraining order and the issues before me. The personal respondent denies refusing the applicant membership. The documents requested have no relevance to the issue of whether the personal respondent denied the applicant membership. The respondents submit that, in any event, they were entitled to refuse the applicant membership in their club on the basis that she was anatomically male at the time. The documents requested are not relevant to this potential response. Finally, the respondents appear to be arguing the personal respondent refused to admit the applicant, or hesitated to admit her because he perceived that she was an actual threat to other members of the club. In my view, the existence of a restraining order against the applicant by some person or persons unknown at some undefined time in the past based on a statement by a third person is not arguably relevant to the respondents’ potential defence.
Requests for Information
45The respondents also made requests for information from the applicant. The applicant argued that the Transitional Rules do not provide for a pre-hearing discovery process and the information sought can be elicited during the hearing, if relevant.
46While I agree that the Transitional Rules does not provide for a discovery process, in some cases, the Tribunal may order further information in the form of particulars, to ensure a fair, just and expeditious hearing.
47However, I find that the information sought by the respondents is not required to ensure a fair, just and expeditious hearing in this case.
48Generally, particulars are ordered in order to provide the respondents with sufficient information in order to enable them to respond to the allegations of discrimination they face. In my view, the following information or particulars are not required in order to permit the respondents to respond:
a) Whether the applicant was a member of a gym or fitness club prior to applying for membership with the respondents;
b) Whether the applicant knew the identify of the other transgendered individuals who applied for membership at the respondents or whether the applicant advised or encouraged any person to apply to the respondents;
c) The date the applicant first met with her legal counsel;
d) How often the applicant frequented the women’s only gym she subsequently joined;
e) Where the applicant’s sexual reassignment surgery was performed, and if outside Ontario why;
f) Whether the costs of the applicant’s sexual reassignment surgery was covered by the Ontario Health Insurance Plan;
g) Whether the applicant’s sexual reassignment surgery was approved by the Centre for Addiction and Mental Health or any other medical organization in Canada;
h) The date the applicant informed her employer, landlord, and/or realtor that she intended to move out of St. Catharines and the date she actually moved out of St. Catharines;
i) Whether the applicant is currently a member of a gym or fitness club, and if so, how often she frequents that gym or fitness club;
j) The basis for the applicant’s claim for damages.
49The respondents submitted that the information sought in paragraphs a, b, c, d and i are relevant to the bona fides of the applicant’s application for membership. I have already stated my reasons for deciding that I will not order production of documents relating to the bona fides of the applicant’s application. This information is also not required to permit the respondent to respond to the allegations of discrimination.
50The respondents submitted that items e, f, and g are relevant and necessary because they relate to the validity of the human rights complaint, the Tribunal’s jurisdiction, the applicant’s motivation in pursuing human rights damages and her mental condition.
51I fail to see how these requests relate to the validity of the Application. To the extent that this is another way of questioning the bona fides of the applicant’s application for membership, I have dealt with this above. The respondents do not require particulars about the applicant’s motivation in pursuing damages in order to respond to the relief requested.
52Finally, the Tribunal’s jurisdiction to hear this Application as framed as discrimination on the basis of sex, rather than disability has been dealt with above.
53The respondents submitted that item h, the date the applicant indicated an intention to move from St. Catharines to Ottawa is relevant to her claim for damages. Again, I conclude that this information is not required by the respondents to enable them to respond to the issue of damages.
54Finally, item j, the basis for the damages claimed, is a matter of legal argument and not a matter for which I find it necessary to order particulars.
Orders
55The applicant is directed to provide the following records within 45 days of the date of this Interim Decision:
The medical records from the applicant’s treating physician, if any, who was aware that the applicant was living as a woman and planning to undergo transsexual surgery, from July 2005 until the end of July 2006.
The medical records relating to the applicant’s transsexual surgery.
56The parties are directed to file written submissions, including any case law relied upon, on whether this hearing should be bifurcated, within 20 days of the date of this Interim Decision.
57Each party shall file responding submissions, if any, to the other parties’ submissions within 10 days of receipt of the other parties’ submissions.
Dated at Toronto, this 15th day of July, 2009.
“Signed by”
Kaye Joachim
Alternate Chair