Janet Vaiakis v. Her Majesty the Queen in Right of Ontario as represented by The Minister of Health and Long-Term Care, 2010 HRTO 1617

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janet Vaiakis

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: Michelle Flaherty

Date: July 28, 2010

Citation: 2010 HRTO 1617

Indexed as: Vaiakis v. Ontario (Health and Long-Term Care)

1This Application, filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination on the basis of disability, sex, and sexual orientation in the provision of goods, services or facilities.

2In essence, the applicant states that the respondent discriminated against her by failing to pay for sex reassignment surgery (“SRS”) which she underwent in February of 2007. The applicant states that, as SRS was not an insured service in 2007, she was required to pay for the surgery out of her own pocket at that time. She states that, although SRS has since been included as an insured service, the respondents have refused to reimburse her for the surgery. I understand the applicant to be alleging the respondent’s refusal to reimburse her for the surgery constitutes discrimination under the Code.

3In its Response, the respondent denies that the refusal constitutes discrimination. It seeks the dismissal of the Application because:

a. its substance was appropriately dealt with in another proceeding; and

b. the Application was filed more than one year after the last alleged incident of discrimination.

4The applicant has not filed a Reply and the time for doing so has elapsed.

TIMELINESS

5Section 34 of the Code states:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

6Thus, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

7The Application was filed on December 31, 2009. The respondent argues that the limitation period begins to run either on June 3, 2008 (when SRS was reinstated as a funded service) or on February 19, 2007 (when the applicant underwent surgery).

8In the Application, the applicant does not identify the date of what she feels to have been the last incident of discrimination. She states, however, that her request for reimbursement was refused by the respondent on October 23, 2008. She appealed this decision to the Health Services Appeal and Review Board (“HSARB”), which rendered a negative decision on July 8, 2009.

9Based on the materials before me, I find that the last incident of alleged discrimination was on October 23, 2008, when the respondent refused the applicant’s request for reimbursement. The HSARB is not a party to the Application and the Application contains no allegations that the HSARB discriminated against the applicant. At issue is the respondent’s refusal to reimburse the applicant for SRS and I cannot see how the HSARB’s decision could constitute an alleged incident of discrimination within that context.

10On this basis, I conclude that the Application was filed more than one year after the last alleged incident of discrimination.

11In the materials they have filed with the Tribunal, neither party has addressed whether any delay was in good faith or whether it may have resulted in a substantial prejudice to any affected party.

12Within fourteen days of the date of this Interim Decision, the applicant may file with the Tribunal and provide to the respondent written submissions regarding the two issues identified in paragraph 6 of this Interim Decision.

13Within ten days of the date of any submissions filed by the applicant, the respondent may file with the Tribunal and provide to the applicant written submissions regarding the two issues identified in paragraph 6.

14If either party fails to provide such written submissions, the Tribunal may determine the timeliness issue based on the materials already filed.

15Once it has determined whether the Application is timely, the Tribunal may address the respondent’s request to dismiss the Application because another proceeding has appropriately dealt with its substance.

16I am not seized of this matter.