Ilha v. Ontario (Health and Long-Term Care), 2010 HRTO 594

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

Date: March 18, 2010

Citation: 2010 HRTO 594

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

1The purpose of this Interim Decision is to address the applicants’ Request for an Order During Proceedings (“Request”) to consolidate four Applications and have them heard together.

2The applicants filed Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 17, 2009 (Ilha and Attaran), and November 13, 2009 (Mescher and Lobo), 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.

3The applicants Ana Ilha and Amir Attaran are spouses. The applicants Robert Mescher and Betty Ann Lobo are spouses. Each individual has filed an Application.

4In an earlier Interim Decision, 2010 HRTO 32, the Tribunal ordered that the Attaran and Ilha matters be consolidated and heard together.

5The applicants now seek to have all four matters consolidated and heard together. They argue that it would be fair, just and expeditious to consolidate all four matters and hear them together. Although the reasons for the infertility differ from one couple to the next, they argue that the same basic facts and issues give rise to all four Applications. They intend to rely on the same expert evidence in each matter.

6The respondent consents to the Mescher and Lobo matters being consolidated and heard together, but objects to the consolidation of the four matters. It stresses that the reasons for the infertility is different with each couple and states that it would unduly delay the matters to have them heard together. It suggests that one case be heard before the other and serve as a “partial precedent”.

7Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together.

8In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (C.H.R.T.), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

9In my view, the four Applications should be consolidated and heard together. There are clearly common and overlapping issues of fact and law and there is a public interest in avoiding a multiplicity of proceedings. Furthermore, there is no evidence that consolidating and hearing the Applications together will result in prejudice to any person. The difference in the basis of the infertility in each case is not, in my view, a compelling reason not to consolidate the Applications in these circumstances. I note that in Ball v. Ontario (Community and Social Services), 2010 HRTO 360, the Tribunal heard three matters together which raised similar legal and factual issues but involved different disabilities.

10The applicants’ request to consolidate the four Applications is therefore granted.

11I am not seized of this matter.