HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ana Ilha
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care
Respondent
A N D B E T W E E N:
Amir Attaran
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care
Respondent
A N D B E T W E E N:
Betty Ann Lobo
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care
Respondent
A N D B E T W E E N:
Robert William Mesher
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
Indexed as: Ilha v. Ontario (Health and Long-Term Care)
1The applicants filed Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against them with respect to services because of disability and sex. More specifically, they allege that the respondent has discriminated against them by refusing them funding for in vitro fertilization treatments, although funding for this treatment is provided in other circumstances of infertility. The respondent denies the allegations of discrimination.
2In two earlier Interim Decisions, 2010 HRTO 32 and 2010 HRTO 594, the Tribunal ordered the four matters listed in the style of cause be consolidated and heard together.
3The Tribunal has since conducted a number of case conference hearings in these matters. The latest case conference hearing took place on November 29, 2010. The purpose of this Interim Decision is to address how these matters will proceed and to confirm directions the Tribunal provided orally during the case conference hearing.
LEAD CASE
4The Tribunal has received a Request to consolidate an additional Application (Miller v. Ontario (Health and Long-Term Care)) to these four matters. That Request is dealt with in a separate interim decision.
5At the case management hearing, counsel for the applicants (who also represents Ms. Miller) indicated that there may be other applications which raise issues similar to those raised in this matter and may result in further requests to consolidate.
6At the case conference hearing, I proposed that the four consolidated matters proceed as a Lead Case. The Tribunal’s decision in the Lead Case would address the allegations and fact scenarios at issue in the four consolidated matters and would set out the general principles applicable under the Code. It may be that the Tribunal’s decision in the Lead Case will assist the parties in other, similar applications to resolve or narrow the issues outstanding between them.
7All parties agreed to this proposal and declined the opportunity to make further submissions regarding whether a Lead Case approach is appropriate in the circumstances.
8While the applicants agreed to the lead case proposal, they submitted that the Miller Application be consolidated with the Lead Case group. As I have indicated, this issue is dealt with in a separate interim decision.
9I indicated to the parties that I would set out a proposed order regarding the lead case procedure and would invite submissions from them in this regard. Upon further reflection, I think it is more appropriate to do this once the issues of disclosure and privilege have been addressed, according to the timetable set out below.
DISCLOSURE
10In an earlier Case Assessment Direction, the Tribunal directed the parties to provide disclosure according to an agreed-upon timetable. Although a number of documents had been exchanged, by the next case conference hearing, held on September 23, 2010, the respondent had not completed its disclosure. Some documents were also outstanding from the applicant.
11In a subsequent Case Assessment Direction, the respondent was directed to provide all remaining arguably relevant documents, including post-expert panel documents, as well as a list of any documents over which it is claiming privilege and the basis for the assertion of privilege, by October 31, 2010.
12The respondent did not comply with that direction. It filed a Request for an Order seeking an extension of time in which to produce arguably relevant documents. While it did produce some additional documents, as of the November 29, 2010 case conference hearing, it had yet to disclose all arguably relevant documents.
13On November 25, 2010, the applicants filed a Request for an Order during Proceedings seeking certain remedies in relation to the respondent’s failure to comply with the Tribunal’s directives.
14At the case conference hearing, the respondent advised the Tribunal that it will be in a position to disclose all arguably relevant documents to the applicants by December 20, 2010.
15The respondent is directed to disclose all remaining arguably relevant documents to the applicants by December 20, 2010. This is without prejudice to the applicant’s request for remedies regarding the respondent’s failure to comply with directions from the Tribunal. The applicant’s request will be determined by the Tribunal once the respondent has had an opportunity to make written submissions regarding the remedies requested.
CLAIMS OF PRIVILEGE
16The respondent has claimed privilege over a number of documents. The applicants have indicated that, in a number of circumstances, the list of documents provided by the respondent does not provide sufficient information to allow them to determine whether the privilege claimed is appropriate.
17The parties have agreed to the following process for addressing the privilege issues:
a. By December 3, 2010, the applicants will provide the respondent with a list of the documents over which the respondent has claimed privilege to which the applicants either object or for which they require more information regarding the basis of the privilege claimed;
b. By December 17, 2010, the respondent will respond to the list provided by the applicants and will either provide more information or will indicate why it refuses to provide additional information;
c. At 10 a.m. on December 21, 2010, counsel for the parties will hold a telephone conference during which they will attempt to resolve and/or narrow the issues in dispute regarding the privilege claimed by the respondent.
d. Following the telephone conference, counsel for the applicants will file an amended Request for an Order listing any objections to the privilege claimed by the respondent and particularizing the documents at issue; and
e. The respondent will file a Response to the amended Request for an Order within the timeframe provided in the Rules but no earlier than January 14, 2011.
18The Tribunal has scheduled a further case conference hearing at 9:30 a.m. on January 21, 2011.
Dated at Toronto, this 2nd day of December, 2010.
“Signed by”
Michelle Flaherty
Vice-chair