Lynn LeCoz v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, 2009 HRTO 1748

Human Rights Tribunal of Ontario

B E T W E E N:

Lynn LeCoz Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price Date: October 22, 2009 Citation: 2009 HRTO 1748 Indexed as: LeCoz v. Ontario (Health and Long-Term Care)

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (‘the Code”) which alleges that the respondent discriminated against the applicant on the basis of sexual orientation in respect of goods, services or facilities. Specifically, the applicant alleges that the Ontario Health Insurance Plan’s decision to deny her coverage for in vitro fertilization because such medical services were required on account of her male spouse’s infertility, but not her own, was discriminatory.

2This Interim Decision addresses the respondent’s failure to file a Response to the Application and its request that the applicant clarify the grounds in the Code which relate to her Application.

3On August 31, 2009, the Tribunal sent the Application to the respondent by regular mail, with a direction to file its Response to the Application no later than thirty five (35) days from that date, in accordance with the Tribunal Rules. It is now more than one week since the Response was due and the respondent has not filed a Response in accordance with the Tribunal’s direction.

4The respondent did send a letter to the applicant, copied to the Tribunal, in which the respondent disputes that the facts alleged in the Application constitute discrimination on the basis of sexual orientation. The letter invites the applicant to advise what grounds of discrimination she intends to rely upon in her Application to the Tribunal, if not sexual orientation. The letter indicates that the respondent will file a full Response to the Application once the applicant further clarifies the nature of her allegations.

5Although the applicant asserts that she has been discriminated against on the basis of sexual orientation, it appears from the narrative of her Application that this is not the ground of the Code that relates to her Application. "Sexual orientation" is a personal characteristic that refers, without limitation, to the range of human sexuality from gay and lesbian, to bisexual and heterosexual orientations. As the respondent’s letter suggests, there may be other grounds upon which the applicant in fact wishes to base her Application.

6While I am sympathetic to the respondent’s attempt to clarify the grounds upon which the allegations in the Application are based before filing a Response, the Tribunal’s Rules generally require a full response from respondents, even when they are raising an objection to the Application which they seek to have determined on a preliminary basis. Rule 8.2 of the Tribunal’s Rules of Procedure (available on our website, www.hrto.ca) set out the limited circumstances in which a respondent is not required to file a Response to an Application:

Rule 8.2 A complete Response must provide the information requested in each section of the Form 2, respond to each allegation set out in the Application and must also include any additional facts and allegations on which the Respondent relies. Where a Respondent alleges the issues in dispute in the Application are the subject of:

a) a full and final signed release between the parties, or

b) a civil court proceeding requesting a remedy based on the alleged human rights infringement, or

c) a complaint filed with the Ontario Human Rights Commission,

the Respondent need not respond to the allegations in the Application, but must attach a copy of the applicable release, or statement of claim or court decision, or complaint filed with the Ontario Human Rights Commission or its decision to the Response. Notwithstanding anything else in Rule 8.2, the Tribunal may direct a Respondent to file a complete Response where the Tribunal considers it appropriate.

7Additionally, the Tribunal has held that a respondent is not required to file a complete Response to an Application where the respondent alleges that an Application falls under federal, and not provincial, jurisdiction: Masood v. Bruce Power, 2008 HRTO 381.

8A Tribunal application is a legal proceeding, which, if a violation of the Code is found, may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a Response may lead to orders against respondents without further notice or their participation. The respondent’s attention is drawn to Rule 5.5 of the Tribunal’s Rules of Procedure, which reads as follows:

5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

9None of the circumstances where a respondent is not required to file a Response to an Application appear to exist here. Accordingly, if the respondent wishes to participate in this proceeding, it shall file a Response by November 19, 2009. The respondent may raise any objections it may have to the Application in its Response. If a Response is not received by the above-noted date, the Tribunal may proceed without further notice to the respondent and may take any or all of the other steps set out in Rule 5.5.

10If, as the respondent suggests, there are other grounds under the Code upon which the applicant wishes to base her Application, the applicant should send her amended Application to the respondents and to the Tribunal by November 5, 2009. If the applicant does not amend her Application by changing or adding to the alleged grounds of discrimination, the respondent should nonetheless file its Response by the date indicated.

11I am not seized of this matter.