Miller v. Ontario (Health and Long-Term Care), 2010 HRTO 2414

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tamera Miller

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: December 3, 2010

Citation: 2010 HRTO 2414

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

WRITTEN SUBMISSIONS

Tamera Miller, Applicant ) Paul Champ and ) Anne Levesque, Counsel

Her Majesty the Queen in Right of ) Janet Minor, Matthew Horner Ontario as represented by the Minister of ) and Rochelle Fox, Counsel Health and Long-Term Care, Respondent )

1The applicant filed an Application 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 her with respect to services because of disability. More specifically, she alleges that the respondent refused her funding for in vitro fertilization treatments, although it provides funding in circumstances where infertility is caused by other biomedical conditions. The respondent denies the allegations of discrimination.

2The purpose of this Interim Decision is to address the applicant’s Request for an Order During Proceedings (“Request”) to consolidate this Application with four already consolidated Applications (collectively, the “Lead Case”) and have the five matters heard together.

BACKGROUND

3In a series earlier Interim Decisions involving the Lead Case, the Tribunal consolidated four Applications (see 2010 HRTO 32 and 2010 HRTO 594) and, with the consent of the parties, decided that these four cases would be dealt with as a Lead Case. See 2010 HRTO 2402.

4In 2010 HRTO 2402, the Tribunal noted that this applicant has also sought to have her Application consolidated with the Lead Case. The applicants in the Lead Case did not object to their matters proceeding as a Lead Case. However, they have asked that this Application be consolidated and heard together with the Lead Case.

5Counsel for the applicant (who also represents the four applicants in the Lead Case) has indicated that additional applications may be filed by applicants whose cases raise issues similar to those raised in this matter and in the Lead Case.

POSITIONS OF THE PARTIES

6The applicant argues that it would be fair, just and expeditious to consolidate this matter with the Lead Case. Although the biomedical reasons for the infertility differ from one applicant to the next, the applicant argues that the same basic facts and issues give rise to all five applications. Each application alleges discrimination on the ground of disability (although some also assert the ground of sex).

7The applicant states that she will rely on the same expert evidence as the applicants in the Lead Case to establish her claim and asserts that consolidation will not prejudice any of the parties.

8Counsel for the applicant has indicated that the applicant would likely be in a position to disclose all documents that are arguably relevant to this Application before the respondent will have complied with its disclosure obligations in the Lead Case. Counsel argues that consolidating this Application with the Lead Case will not result in any delay or prejudice to the respondent.

9The respondent objects to the Request. It argues that adding a further Application will complicate and potentially lengthen the proceedings because each applicant in the Lead Case will need to advance his or her own medical evidence to establish differential treatment that amounts to discrimination under the Code. In its Response to the Request, the respondent suggests that, rather than consolidate a fifth application, it would be more appropriate to adopt a procedure analogous to the lead case approach ultimately chosen by the Tribunal.

10Counsel for the respondent noted that the applications included in the Lead Case already relate to a range of biomedical conditions causing infertility. She argued that adding a fifth case will not meaningfully assist the Tribunal in setting out the general principles applicable to the issues raised.

11The applicant argues that an applicant’s biomedical condition is not particularly relevant to the Tribunal’s inquiry; all individuals who are infertile have the same disability, regardless of its biomedical cause.

DECISION

12In considering the Request, I am mindful:

a. that the Tribunal has set up a Lead Case process in order to address the allegations and fact scenarios at issue in the four consolidated matters and to set out the general principles applicable under the Code in similar circumstances;

b. of the stage of the proceedings of the Lead Case and the fact that, although there have been a number of delays regarding disclosure, it will be complete by December 20, 2010;

c. the fact that each applicant in the Lead Case will be required to establish his or her infertility (or that of his or her partner) and that a greater number of applicants in the Lead Case potentially means a longer and more complicated proceeding;

d. the fact that other applications have been filed and may be filed in the future that raise similar legal and factual issues as the Lead Case and this Application; and

e. the range of biomedical conditions already present among the applicants in the Lead Case.

13In light of all of these factors, I find that the most fair, just and expeditious way of proceeding is to deny the Request.

NEXT STEPS

14It may be appropriate to defer consideration of this Application pending the determination of the Lead Case. Accordingly,

a. by January 6, 2011, the applicant may provide written submissions regarding deferral to the respondent and file them the Tribunal;

b. by January 20, 2011, the respondent may respond to the applicant’s submissions by providing its own written submissions on the deferral issue to the applicant and filing them with the Tribunal; and

c. if no submissions are received, the Tribunal may determine the issue based on the materials already filed.

15I am not seized of this matter.