McIntosh v. Ontario (Government Services), 2010 HRTO 2363

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ambrose McIntosh

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: November 29, 2010

Citation: 2010 HRTO 2363

Indexed as: McIntosh v. Ontario (Government Services)

WRITTEN SUBMISSIONS

Ambrose McIntosh, Applicant ) Chantal Tie, Counsel

Her Majesty the Queen in Right of Ontario ) Sean Hanley, Counsel

as Represented by the Minister of )

Government Services, Respondent )

ii

1This is an Application filed on November 23, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, (the “Code”) as amended. It alleges that s. 36 of the Vital Statistics Act, R.S.O. 1990, c. V.4, as amended (the “VSA”) which deals with change of sex designation on birth certificates, discriminates against transsexual people on the basis of sex and disability by: (a) failing to recognize the change of sex and name certificate duly issued by the Directeur de l’Etat civil in Quebec; (b) requiring applicants to obtain two medical certificates, including one from a person who did not perform the surgery; and (c) requiring a person who is transsexual to have undergone “transsexual surgery” in order to obtain a change of sex designation.

2On September 13, 2010, the Tribunal issued a Case Assessment Direction noting that the Application raises very similar issues to XY v. Ontario (Government and Consumer Services), Tribunal File No. 2009-01326-I. The Tribunal noted that hearings were scheduled to start at the end of the September 2010 in XY and it was anticipated that the hearing would conclude by the end of December 2010. The Tribunal asked the parties to indicate whether they wished to await the outcome of XY before proceeding.

3By letter dated September 15, 2010, counsel for the applicant advised the Tribunal that the applicant did not wish to await the outcome of XY. She asked that the matter proceed to mediation or hearing “without delay”.

4By letter dated September 20, 2010, the respondent took the position that it would be appropriate to defer this matter until XY had concluded. The respondent takes the position that the two cases involve very similar, if not identical, issues. The respondent notes that both involve a challenge by a transgendered individual to the VSA requirement of proof of transsexual surgery in order to change the sex designation on a birth certificate. Proceeding in the present case, in the respondent’s opinion, would be unnecessarily duplicative, and amount to an unwarranted drain on the Tribunal’s and parties’ resources. Further, it states, proceeding with both cases separately but simultaneously would give rise to a risk that the Tribunal may render inconsistent decisions on the same issue.

5On October 25, 2010, the Tribunal issued a Case Assessment Direction, in which I stated that it was difficult for me to see how mediation could be fruitful or a hearing could be held while the XY case is under reserve, for the reasons stated by the respondent. The Tribunal proposed to defer the Application pending the resolution of the XY case. The Tribunal directed that should the applicant wish to make submissions on the issue of deferral, he could do so within two weeks.

6On October 26, 2010, counsel for the applicant wrote to counsel for the respondent requesting more information about XY. Counsel for the respondent responded the next day, stating that both Applications allege that the requirement in s. 36 of the VSA of corroboration of transsexual surgery in order to change the sex designation on the birth registry and on a birth certificate, discriminates on the basis of sex, sexual orientation, and/or disability contrary to the Code. Counsel for the respondent suggested that counsel for the applicant obtain further particulars from counsel for XY, as there is a partial publication ban in that case. See XY v. Ontario (Government and Consumer Services), 2010 HRTO 1906.

7On November 8, 2010, counsel for the applicant wrote to the Tribunal stating that the applicant in XY had not, to that point, been willing to provide copies of the Application, Response, and Reply in XY. Counsel for the applicant states:

The Applicant is therefore at a significant disadvantage, having to take the Respondent’s word for the fact that the legal issues between the parties are “similar if not identical”. Under the circumstances, any submissions made on the issue will of necessity, have to be entirely speculative. Clearly, if the Respondent is correct and the issues are identical, this would be a strong factor in favour of deferral. Unfortunately, I am unable to make any meaningful submission on the question, because I have not seen the documents from the XY case.

8The applicant asks that the Tribunal provide the applicant with the Application, Response, and Reply in the XY case, redacted if necessary, and asks for an extension to the deadline to provide submissions in response to the Case Assessment Direction of October 25, 2010. The respondent takes no position on this request. The applicant’s letter was not copied to any of the parties in the XY case.

DECISION

9The applicant’s requests for the documents in the XY case and for an extension of time to make submissions on the issue of deferral are denied. The Application is deferred pending the conclusion of proceedings in the XY case.

ANALYSIS

10It is evident from the submissions that XY has not been willing to agree to provide the materials in that case to the applicant in this case. It is also clear from the Tribunal’s anonymization and publication ban decisions in that case that XY has significant privacy concerns. In these circumstances, when there is a partial publication ban, XY has privacy interests and it is clear that she objects to the disclosure of the documents, it would not be appropriate for the Tribunal to order the production of materials from that case to Mr. McIntosh without notice to XY and a chance for her to make submissions.

11There is, however, no need to pursue the issue of the XY materials further, as it is clear on the basis of the information available to the applicant in this case, and on which he has had the opportunity to make submissions, that this Application should be deferred pending the conclusion of XY.

12The applicant is not being asked to take the applicant’s word for the fact that the issues are similar. In its Case Assessment Direction of September 13, 2010, which brought the XY case to the parties’ attention, the Tribunal stated that it had reviewed the Application and the issues were “very similar”. The respondent has also clarified that both Applications involve challenges to the requirements in s. 36 of the VSA regarding change of sex designation. Unless the applicant’s counsel is suggesting that the Tribunal and/or respondent are misleading her, it is evident that there is overlap in the Applications.

13Whether or not some of the facts or grounds for the challenge to s. 36 of the VSA are different in this case from XY, it is evident that this case should be deferred pending its conclusion. The XY hearing is ongoing and expected to be completed by the end of December. It involves a challenge by a transsexual person to the same statutory provision that the applicant is challenging. The issues are complex and the proceedings in XY have involved many days of Tribunal hearing. There is no doubt that, even if this case involves additional facts and issues not present in that case, the decision in XY will have a significant impact on the resolution of the legal issues in this case. Given that the XY hearing is about to be completed, it would be unnecessarily duplicative and not in the interests of justice to proceed with this matter at this time and it shall be deferred.

14Accordingly, pursuant to Rule 14.1, this Application is deferred pending completion of the Tribunal proceedings in XY. Counsel for the respondent is directed to send the applicant a copy of the Decision in XY upon its release. The parties’ attention is directed to Rule 14.4, which requires that a Request to reactivate an Application be filed no later than 60 days after the conclusion of the other proceeding.

15I am not seized.