HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nell Toussaint
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: David A. Wright
Indexed as: Toussaint v. Ontario (Health and Long Term Care)
APPEARANCES
Nell Toussaint, Applicant ) M. Kate Stephenson, ) Counsel
Her Majesty the Queen in Right of Ontario ) S. Zachary Green, as represented by the Minister of Health ) Counsel and Long Term Care, Respondent )
INTRODUCTION
1The applicant has lived in Canada since 1999, but has no legal status. She came to Canada as a visitor and remained here when this status expired. In 2008, she attempted to apply for permanent residence on humanitarian and compassionate grounds under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 25. Her application was not accepted because she did not pay the applicable $500 fee, which she says she is unable to afford.
2The applicant has challenged the fee requirement unsuccessfully in Federal Court: Toussaint v. Canada (Citizenship and Immigration), 2009 FC 873. She has also challenged, unsuccessfully, the denial of health coverage under the Interim Federal Health Program (“IFHP”) on various grounds, including on the basis that it discriminated against her on the basis of citizenship contrary to the Canadian Charter of Rights and Freedoms: Toussaint v. Canada (Attorney General), 2010 FC 810 (“Toussaint #2”). These decisions are both on appeal to the Federal Court of Appeal.
3This case is about the applicant’s attempt to obtain health coverage under the Ontario Health Insurance Plan (“OHIP”). The applicant applied for OHIP coverage in 2009. She was denied because she does not meet any of the criteria set out in R.R.O. 1990, Regulation 552, as amended, which defines the criteria for eligibility. Subject to a three-month waiting period, to receive OHIP coverage a person must be an Ontario resident and have an eligible status. Citizens, permanent residents, or “protected persons” under immigration law, among others, are eligible for OHIP. In addition, persons who have submitted an application for permanent residence in Canada are eligible if Citizenship and Immigration Canada has confirmed that the person meets the eligibility requirements for permanent residence in Canada. The applicant states that if she had been able to afford the $500 fee and make an application for permanent residence on humanitarian and compassionate grounds, she would have been covered by OHIP. Not having a legal status in Canada, the applicant is not eligible for OHIP.
4On October 7, 2010, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended, alleging that the denial of OHIP coverage constitutes discrimination in services on the basis of citizenship and place of origin. Her argument is that in treating her differently from another non-citizen who, like her, wishes to stay in Canada, the government is discriminating against her on the basis of citizenship. She says that the ground of citizenship includes discrimination between any subcategories of non-citizens, including between non-citizens with legal status in Canada and those without.
5The applicant also argues that the defence in s. 16(1) of the Code does not apply, because the distinction is not based on “Canadian citizenship”. Section 16 reads as follows:
- (1) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.
(2) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.
(3) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions.
Request for Interim Remedy
6Together with her Application, the applicant filed a Request for Interim Remedy under Rule 23 on October 7, 2010, asking that the Tribunal order the Ontario government to provide her with OHIP coverage pending the determination of her Application. She argues that her health situation justifies this extraordinary remedy in the circumstances of this case. The respondent, on the other hand, takes the position that the Tribunal has no power to order substantive, as opposed to procedural, interim remedies. It also argues that even if the Tribunal does have this power, an interim remedy should not be awarded in this case.
7The parties made oral argument on the Request for Interim Remedy on October 15, 2010. This Interim Decision deals with that Request.
ANALYSIS
Jurisdiction
8I address first the issue of whether the Tribunal has the power to grant substantive interim remedies. On June 30, 2008, significant changes to the Code were implemented, which included the filing of applications directly with the Tribunal. The new Rules of Procedure for Applications under s. 34 include Rule 23, dealing with interim remedies. Rule 23 reads as follows:
23.1 An Applicant may request that the Tribunal order an interim remedy in an Application. A Request for an Interim Remedy must be made in Form 16. If the Request is made at the same time the Application is filed, it need not be delivered to the other parties. If it is made at a later stage, it must be delivered to the other parties and filed with the Tribunal.
23.2 The Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
23.3 A Request for an Interim Remedy must include:
a) a detailed description of the order sought;
b) one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Applicant relies; and,
c) submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would be just and appropriate in the circumstances, in accordance with the Rule 23.2.
23.4 The other parties must file their response, if any, in Form 17, Response to Request for Interim Remedy, not later than seven days after the Form 16 was delivered. The Form 17 must be delivered to the other parties and any affected persons identified in the Application and filed with the Tribunal not later than seven days after the request was sent or as the Tribunal directs.
23.5 A Response to Request for Interim Remedy must be delivered to all other parties and filed with the Tribunal and must include:
a) one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Respondent relies; and,
b) submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would not be just and appropriate in the circumstances, in accordance with the Rule 23.2.
9Since then, the Tribunal has granted substantive interim remedies in four decisions: Lavallee v. Zulich Enterprises, 2009 HRTO 402; C.D. v. Wal-Mart Canada, 2009 HRTO 801; Mitchell v. Halton Condominium Corporation #499, 2010 HRTO 1507; and Andersen v. Carleton Condominium Corporation #8, 2010 HRTO 1761. The Tribunal has also dealt with various other requests for interim remedy on the basis that it had the power to do so, see, in particular, TA v. 60 Montclair, 2009 HRTO 369. However, in none of those cases has the Tribunal’s power to order an interim remedy been challenged. The respondent in this case is the first to raise this issue.
10The Tribunal has only the powers given to it by statute. It is undisputed that the Code does not expressly provide the Tribunal with the jurisdiction to make substantive interim orders. If the Tribunal has the power to do so, it must arise from s. 16.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”), which reads as follows:
16.1(1) A tribunal may make interim decisions and orders.
(2) A tribunal may impose conditions on an interim decision or order.
(3) An interim decision or order need not be accompanied by reasons.
11The respondent argues that s. 16.1 does not grant the Tribunal the power to grant the equivalent of an interlocutory injunction. Its position is that this is an extraordinary power, normally limited to superior courts. Section 16.1, the respondent suggests, would have used more specific language had it intended to grant Ontario tribunals that power. It argues that s. 16.1 is restricted to the power to make interim procedural decisions and orders.
12Second, the respondent argues, s. 42(2) of the Code provides that the Code and the Tribunal rules prevail over any provision of the SPPA with which they conflict. The Code’s remedial provision, s. 45.2(1), restricts the Tribunal’s power to make remedial orders to circumstances where the Tribunal has found that one party to a proceeding has infringed another party’s right under the Code. The respondent says that if s. 16.1 of the SPPA provides the power to grant substantive interim orders, s. 45.2’s requirement that a breach must be found before a remedy is awarded must prevail. Section 45.2(1) reads as follows:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
13I will deal first with the question of whether s. 16.1 of the SPPA grants a power to make substantive interim orders and then with the question of whether s. 45.2 of the Code ousts that power.
Section 16.1 of the SPPA
14There are conflicting decisions in Ontario tribunals about whether s. 16.1 confers on tribunals the power to make substantive interim awards. In Arzem v. Ontario (Community and Social Services), 2005 HRTO 11 (“Arzem”), a case referred to the HRTO by the Ontario Human Rights Commission under the old Code, the Tribunal found that s. 16.1 does not include the power to grant substantive interim orders. The Tribunal declined to follow various Ontario Labour Relations Board (“OLRB”) decisions that held that s. 16.1 conferred this power: Ontario (Management Board of Cabinet), [1996] O.L.R.D. No. 3477 (QL), Ontario Hydro, [1996] O.L.R.D. No. 3638 (QL); and Tricin Electric Ltd., [2004] O.L.R.D. No. 5259 (QL).
15In my view, the OLRB jurisprudence reflects the correct interpretation of s. 16.1, and is more consistent with the contemporary approach to statutory interpretation and the role of administrative tribunals. To explain why, it is helpful to review briefly the reasoning in each of these decisions.
16In Arzem, the Tribunal held that the remedial section of the Code (s. 39(1) at the time) required that the Tribunal hold a hearing and find a violation of a right before awarding a remedy. It held that a respondent had a vested right that no remedies could be granted without a finding of a Code violation, and that s. 16.1 could not change that. It also relied upon the fact that following the OLRB cases, the legislature had amended the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, to “prohibit the OLRB from awarding substantive interim relief” (para. 178).
17The Tribunal in Arzem also relied heavily upon the fact that the power to grant an injunction is an extraordinary equitable remedy traditionally within the inherent jurisdiction of superior courts. It held that when the Legislature confers such a power on tribunals, this “must be expressed in clear and unequivocal language” and include “the subject-matter of the application, the parties and the remedy being sought” (para. 197). Noting that the Small Claims Court does not have the power to grant equitable relief, the Tribunal held that it was inconceivable that the Legislature would have intended to confer on all Ontario tribunals the power to grant substantive interim remedies (para. 191):
The specific exclusion of the Small Claims Court to grant equitable relief raises the question: why would the Legislature confer such extraordinary power, en masse, on 80 tribunals? The discernible deduction is, the language of section 16.1 of the SPPA is quite an impotent statutory implement to bestow such an extraordinary power on the entire administrative justice system.
It also noted the role of the SPPA in establishing a minimal procedural code, suggesting that a substantive power would be inconsistent with that approach.
18In Ontario (Management Board), supra, the OLRB dealt with then-recent amendments to the Labour Relations Act that restricted the Board’s jurisdiction to make interim orders to “procedural matters”. The OLRB held that it nevertheless had the power under s. 16.1 of the SPPA to order substantive interim relief in light of the fact that the SPPA prevailed over the Labour Relations Act. In interpreting s. 16.1 to include the power to make substantive orders it held as follows, at paras. 36-37:
However, the word "procedural" is not found in section 16.1 of the SPPA, and as with the LABOUR RELATIONS ACT, 1995, there are found elsewhere in the SPPA specific "process" powers. To read the unrestricted "interim" power in section 16.1 as so limited would render the section largely redundant. As well, section 16.1(2) empowers a tribunal to "impose conditions on an interim decision or order". It appears even less likely that the "interim orders" envisaged in section 16.1 were only of a "process" nature, given this explicit power to attach conditions to such orders. This linkage suggests orders of a more significant nature than merely running a hearing. We note also that section 16.1 authorizes the making of interim "decisions", not only "orders", further buttressing the argument that a tribunal can make substantive decisions on an interim basis under section 16.1.
On balance, it appears to us that section 16.1 of the SPPA gives jurisdiction to tribunals, including this one, to make decisions or orders on an interim basis that relate to or derive from the tribunal's general or overall jurisdiction. Provided the tribunal acts generally within its jurisdiction, it has a largely unfettered discretion to make interim "decisions or orders" that it has the jurisdiction to make on a final basis, after a hearing on the merits, or that it considers necessary in order to ensure that the statutory rights it deals with are protected until a final decision issues.
19The OLRB, differently constituted, reached the same conclusion for similar reasons in Ontario Hydro, supra, at paras. 54-55:
The words "procedural" or "relating to proceedings" (or any other derivation of the word "procedure") is nowhere to be found in section 16.1 of the SPPA. As in the LABOUR RELATIONS ACT, 1995, such references are found elsewhere in the SPPA (for example, "procedural requirements" in section 4(1); "procedural matters" in section 4.2(1); "with respect to the conduct of the proceeding" in section 5.3(3)). In addition, section 16.1(2) provides that a tribunal may impose conditions on an interim decision or order, the same sort of provision which accompanied the substantive interim relief power in section 92.1 of the Bill 40 Act, and which is found in provisions of the current Act which gives the Board substantive interim relief power (in section 99, for example).
Finally, notwithstanding that the SPPA is primarily directed at procedural matters, it is difficult to see what section 16.1 could be directed at if not substantive interim relief jurisdiction, having regard to the comprehensive procedural provisions in the rest of the SPPA. (Similarly, it is far from obvious that other provisions of the SPPA, section 21.2 for example, do not have substantive elements to them.) And unlike section 98 of the current Act, which replaced an earlier provision (section 92.1) in the Bill 40 Act with a clearly narrower jurisdiction, section 16.1 replaced nothing. It was a new provision added in 1994 which was not altered by Bill 7 (although Bill 7 did address the SPPA in changes it made to the LABOUR RELATIONS ACT). As such, it must have been intended to add something to the jurisdiction of tribunals to which the SPPA applies. I am unable to discern what that addition could be other than a substantive interim relief power.
20Following those two cases, the Legislature amended s. 98 of the Labour Relations Act, to provide that s. 98 of the Labour Relations Act applied under that legislation instead of the power under s. 16.1(1) of the SPPA. No such amendment was made to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). In Tricin Electric, supra, the Board found that s. 16.1 of the SPPA gives it jurisdiction to order a substantive interim remedy in an application under s. 50 of OHSA, as the Legislature had not excluded the application of s. 16.1 to the OLRB’s powers under that statute.
21Arzem, on one hand, and Ontario (Management Board) and Ontario Hydro, on the other, take dramatically different approaches to the interpretation of s. 16.1 of the SPPA. Arzem begins from the premise that the power to grant the equivalent of injunctive relief was historically reserved to the courts of equity, and is considered part of the inherent jurisdiction of superior courts. It develops a presumption that the Legislature would not delegate such jurisdiction to administrative tribunals without using specific language. Accordingly, it reasons, the broad language of s. 16.1 cannot be interpreted to grant such a broad power. The OLRB cases begin with the words of s. 16.1 and reason that their broad language suggests an intention to confer broad powers. They look at the rest of s. 16.1, noting that there would be little reason for s. 16.1(2) if there was no intention to confer substantive interim relief powers. Finally, they look at s. 16.1 in the context of the SPPA as a whole, noting that given the other matters provided for in the SPPA, s. 16.1 would accomplish little if it were restricted to procedural matters.
22The Supreme Court has discussed extensively the approach that should be taken to statutory interpretation. The words of the statute must be considered in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”. See R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Saulnier v. Royal Bank of Canada, 2008 SCC 58 at para. 16; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42.
23As the Court stated in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 37:
The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article “Statute Interpretation in a Nutshell” (1938), 16 Can. Bar Rev. 1, at p. 6, “words, like people, take their colour from their surroundings”. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger’s principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter”. (See also Stoddard v. Watson, 1993 CanLII 59 (SCC), [1993] 2 S.C.R. 1069, at p. 1079; Pointe-Claire (City) v. Quebec (Labour Court), 1997 CanLII 390 (SCC), [1997] 1 S.C.R. 1015, at para. 61, per Lamer C.J.)
24I also note s. 64(1) of the Legislation Act, S.O. 2006, c. 21, which reads as follows:
An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.
25I adopt the reasoning of the OLRB in Ontario (Management Board) and Ontario Hydro, which reflects this approach. The words of s. 16.1 of the SPPA suggest a broad power to make interim orders and the Legislature did not restrict this to procedural matters as it did, for example, in the Labour Relations Act itself. There would be no reason to include a power to attach conditions to interim orders as contemplated in subsection (2) if the power merely related to procedural matters. It is unlikely that the Legislature would have found it necessary to add a mere power to make interim procedural orders to the SPPA in 1994, when the legislation included the power to make all kinds of interim procedural orders.
26The approach to interpreting the SPPA should be grounded not in the history of the distinction between common law courts and courts of equity in England, but rather in a contextual recognition of the role of adjudicative tribunals in delivering justice in Ontario. In 2010, many more citizens have their rights determined by administrative tribunals than by courts. The Legislature, in delegating powers to administrative tribunals in many areas of law, has decided that justice can be delivered well by specialized administrative tribunals, with expert adjudicators and dispute resolution processes tailored to the nature of the dispute. The SPPA, in particular as it has been amended over the years, defines both minimum standards and general powers of administrative tribunals. I do not believe that its interpretation should be restricted by a special presumption that the Legislature did not intend to confer jurisdiction on tribunals where such jurisdiction previously fell under the courts of equity or also falls within the inherent jurisdiction of superior courts. There is no principled reason for doing so.
27The respondent also argues, echoing the reasoning in Arzem, that the fact that the Legislature removed the power to award substantive interim relief from the Labour Relations Act suggests that the OLRB was incorrect in its interpretation of the SPPA. I disagree. In my view, this history suggests the opposite conclusion. When the Legislature amended s. 98 of the Labour Relations Act following the decisions in Ontario (Management Board) and Ontario Hydro, it provided that s. 98 applied “instead of the power under subsection 16.1(1) of the Statutory Powers Procedure Act”. The Legislature thereby recognized a difference between the more limited power in the Labour Relations Act and the broader power in the SPPA. It did not choose, as it could have done, to amend s. 16.1.
28Therefore, I find that s. 16.1 of the SPPA gives the Tribunal the power to make substantive interim orders.
The Relationship between s. 45.2 of the Code and the SPPA
29Again echoing Arzem, the respondent argues that even if s. 16.1 does confer such a power, the Code excludes its application and must take precedence because of s. 42(2). I do not agree. Section 45.2 sets out the powers of the Tribunal to award final remedies once a violation of the Code has been found. It does not, however, exclude the possibility of interim remedies. In my view, the SPPA confers on tribunals an additional jurisdiction to make interim remedies that reflect orders it could make on a final basis once a final decision has been made. There is no contradiction because, unlike the Labour Relations Act provision considered in the OLRB cases, nothing in the Code limits the ability of the Tribunal to make an interim order.
30Indeed, I note that s. 46.1 of the Code permits courts to make orders in a civil proceeding if it finds that a party has infringed a Code right of another party to a proceeding, and I do not believe that anyone would seriously suggest that this has removed the courts’ inherent power to order interim injunctive relief.
31Therefore, I find that the Tribunal has the jurisdiction to grant substantive interim remedies. I turn now to the question of whether an interim remedy should be granted in this case.
Should an Interim Remedy be granted?
32The Rule governing the awarding of interim remedies is set out above at para. 8. The approach that the Tribunal takes in determining requests for interim remedies was set out in detail in TA, supra.
33TA articulated various principles that apply to requests for interim remedies. They include the following:
The focus of the inquiry is on whether an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing (paras. 15-27).
Interim remedies are extraordinary remedies and an applicant has a significant onus to meet in demonstrating that an interim remedy is necessary (paras. 28-29).
To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious (paras. 30-32).
The second factor involves a balancing of the harm to the applicant against the harm to the respondent (paras. 33-34).
The third factor calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Code and is fair in all of the circumstances (para. 35).
The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole (para. 36).
34I find that it would not be just and appropriate to award an interim remedy in this case at this stage for the following reasons, upon which I elaborate below:
There is good reason to doubt that this Application falls within the Tribunal’s jurisdiction, on the basis that the allegations do not fall under the ground of citizenship,
If the Application does fall under the ground of citizenship, there is considerable doubt about whether the application can be successful in light of the defence in s. 16.
Both these questions are matters of legal argument that can be determined in an expeditious manner, within weeks.
The Request for Interim Remedy discloses no immediate urgency as of the time of filing this Application that requires a remedy before addressing the jurisdictional issue and the question of whether s. 16 applies.
It would therefore be just and appropriate in the circumstances of this case to dismiss the Request for an interim remedy.
35In my view, there is considerable question about whether this Application falls within the Tribunal’s jurisdiction by raising the ground of “citizenship” and about whether it can succeed if it does. To come within the Tribunal’s jurisdiction, the applicant will have to establish that the ground of “citizenship” is not limited to distinctions between citizens and non-citizens and includes distinctions between non-citizens with legal status in Canada and those without legal status.
36In this regard, the applicant will have to establish that the scope of the ground of citizenship is different under the Code than under the Charter and/or that previous Charter jurisprudence should not be followed in light of the arguments that she makes. In Irshad (Litigation Guardian of) v. Ontario (Minister of Health) (2001), 2001 CanLII 24155 (ON CA), 55 O.R. (3d) 43 (C.A.), the Court dismissed a s. 15 Charter challenge on various grounds, including citizenship, to a previous version of the regulation in question here. At para. 125, the Court rejected the argument that there was discrimination on the basis of citizenship. It held as follows, at para. 137:
Immigration status can determine a person’s right to take up permanent residence in a province. Once it is accepted that the process that results in a particular immigration status does not offend s. 15(1), I fail to see how Ontario’s reliance on that status in determining the nature of an individual’s residence in the province can be classified as discriminatory.
37Similarly, in the applicant’s own case, Toussaint #2, at para. 81, the Federal Court specifically held that the exclusion of persons from a health care program on the basis of their lack of legal status in Canada does not constitute discrimination on the basis of citizenship contrary to s. 15. While I appreciate that the applicant suggests that the Court misunderstood her submissions in this regard (see 2010 FC 926), this does not change the fact that the Court held that the ground of citizenship does not cover her circumstances.
38There are additional legal hurdles she will have to overcome beyond the question of jurisdiction. If the ground of citizenship applies, she will have to establish that in these circumstances, the distinction constitutes substantive discrimination. Moreover, to avoid the defence in s. 16(1), she will have to establish that the meaning of “citizenship” is different in s. 1 than in s. 16(1). I note that, in this regard, the applicant argues that the text of ss. 16(2) and (3) support such a distinction, in separating citizenship from permanent residence.
39These hurdles do not mean, in my view, that the Application is frivolous and vexatious or that the applicant does not have an “arguable case”. This is a low threshold. I accept that the applicant has a somewhat different theory of discrimination than was put forward in Irshad and Toussaint #2 and that there is some support for the proposition that the ground of “citizenship” in the Code includes more than just the status of being a citizen or a non-citizen. For the reasons set out in Marakkaparambil v. Ontario (Health and Long Term Care), 2007 HRTO 24, a decision under s. 15 of the Charter does not necessarily doom a Code challenge on the same grounds, particularly in light of the fact that jurisprudence may have evolved and the claim may be made differently. However, the reasoning of the courts in these cases will certainly be important in determining whether “citizenship” under s. 1 of the Code has the meaning for which the applicant contends.
40In TA, supra, at para. 32, the Tribunal held that in considering the first stage of the test, “[t]here may be circumstances where a higher onus [than whether the applicant has an arguable case] is required...” In my view, a strong factor militating against an interim remedy in this case is that based on the Code and the jurisprudence cited to the Tribunal, there is a serious issue about whether the Tribunal has the power to deal with this Application.
41There are both legal and practical reasons to be more reluctant to award an interim remedy because of the doubt about the Tribunal’s jurisdiction and whether the defence in s. 16 applies. First, as discussed above, the Tribunal’s power to award interim remedies stems from its jurisdiction over the subject matter of the dispute itself and ability to award final remedies in that dispute. The Tribunal only has jurisdiction over allegations of discrimination on the grounds and under the social areas covered by the Code. It has no inherent jurisdiction to award injunctive relief. It should be particularly cautious in awarding such an extraordinary remedy when there is good reason to doubt the Tribunal’s jurisdiction.
42The issues of jurisdiction and of whether the defence under s. 16 bars the Application can be determined in an expeditious manner, within several weeks, based on discrete legal submissions. There is no indication of a need for evidence on these questions. There is nothing in the Request that suggests a particular urgency in granting the relief immediately, even assuming the other stages of the test are met. This is not a case where the asserted need for the interim remedy is to preserve a state of affairs that would be destroyed if the remedy were not granted. The applicant seeks access to OHIP coverage, which she has not had throughout her 11 years in Canada.
43The applicant is able to access emergency health care, because section 20 of the Public Hospitals Act, R.S.O. 1990, c. P.40 and s. 11 of O. Reg. 965 under that Act require hospitals to accept a person as an in-patient if the person has been admitted by a physician and the person requires the level or type of care for which the hospital is approved. The applicant’s declaration makes it clear that she has received emergency health care in hospitals and there is no evidence that the applicant has ever been denied hospital care because of her lack of OHIP coverage.
44Moreover, primary health care is available to the applicant through Community Health Clinics (“CHCs”). CHCs are non-profit organizations funded by the province to provide primary and integrated health care for individuals, families and communities, some who, for a variety of reasons, may have difficulty accessing health care. CHCs offer a broad range of comprehensive primary health care and health promotion programs to individuals and families including those without OHIP coverage. According to the respondent’s evidence, which has not been tested by cross-examination, some CHCs use their funding to cover specialist and diagnostic tests services for uninsured persons by way of agreements with local hospitals and clinics. The applicant’s declaration indicates that she has obtained treatment through her local CHC and other sources, despite not being insured by OHIP.
45The applicant’s evidence, which has not been tested by cross-examination, suggests that although she has received primary health care, she has had difficulty obtaining specialist and diagnostic services. It is not clear why she has recently been unable to obtain the treatments recommended by her physicians through CHCs, in light of what the respondent says is the availability of CHCs as a “safety net” for people without OHIP coverage.
46As I understand the expert medical evidence filed by the applicant, which has not been tested by cross-examination, the risk of complications from the applicant’s various medical conditions place her at greater risk of a grave medical emergency than if she received such care. The deterioration in her health, in various respects, has been ongoing since February of 2009, if not before. Nothing particularly urgent arose in October 2010 when this application was filed that means that the decision on whether an interim remedy should be granted cannot await a decision about the Tribunal’s jurisdiction over the Application.
47In the circumstances, I believe that the doubt over the Tribunal’s jurisdiction and whether s. 16 provides a full defence to the allegations, the ability to determine this issue in an expeditious manner, and the lack of immediate urgency militate against granting the interim remedy. Accordingly, I find that the request for interim remedy should be dismissed.
NEXT STEPS
48The parties made considerable argument about the interpretation of “citizenship” in s. 1 and s. 16 in their oral submissions on this Request. However, they had limited time to research and prepare in view of the timelines for interim remedy requests and the argument was made on the question of whether the Application appeared to have merit. The parties should be given the opportunity to prepare and make full legal submissions on the issues of whether the Application raises the ground of “citizenship” and whether, if it does, the defence of s. 16(1) applies.
49The Tribunal therefore sets the following schedule for further written submissions on these issues:
(1) The applicant shall make written submissions on these issues by November 1, 2010.
(2) The respondent shall make written submissions on these issues by November 15, 2010.
(3) The applicant may reply by November 22, 2010.
50The Tribunal will take into account the written and oral submissions that have already been made in reaching its decision on these issues. If either party wishes to make further oral submissions it shall advise the Tribunal by October 29, 2010 and a conference call will be scheduled for that purpose.
Dated at Toronto, this 18th day of October, 2010.
”signed by”________________
David A. Wright
Interim Chair```
