HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kimberley May
Complainant
-and-
Ontario Human Rights Commission
-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:
Linda Wootton
Complainant
-and-
Ontario Human Rights Commission
-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:
Alexis Van Halen
Complainant
-and-
Ontario Human Rights Commission
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care and G. Fisher
Respondents
A N D B E T W E E N:
Rosalyn Forrester
Complainant
-and-
Ontario Human Rights Commission
-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:
Halle Pasch (now Rockliffe)
Complainant
-and-
Ontario Human Rights Commission
-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:
Cassandra Roads
Complainant
-and-
Ontario Human Rights Commission
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care
Respondent
interim decision
Adjudicator: Jennifer Scott
Date: July 11, 2011
Citation: 2011 HRTO 1317
Indexed As: May v. Ontario (Health and Long-Term Care)
[1] The question before the Tribunal is whether it can come to a different result in these cases from one of its earlier decisions, on the basis of the same evidence as filed in the earlier proceeding. A related issue is whether the transcripts of the evidence in the earlier proceeding can be filed with the Tribunal in the subsequent proceeding in order for the parties’ cases to be presented.
[2] The human rights issue in these cases concerns the government’s de-listing of sex reassignment surgery as an insured benefit under the Ontario Health Insurance Plan (“OHIP”) in 1998. Prior to October 1, 1998, and after June 3, 2008, sex reassignment surgery is an insured benefit if three criteria are met: (a) the patient was a resident of Ontario; (b) the patient had completed CAMH’s Gender Identity Disorder Clinic programme; and (c) CAMH had recommended the patient for surgery.
[3] On October 1, 1998, Ontario de-listed sex reassignment surgery as an insured benefit pursuant to Regulation 528/98 which is reproduced in part below:
Sex-reassignment surgical procedures are an insured benefit only if they are performed on patients who have completed the Gender Identity Clinic program operated by the Centre for Addiction and Mental Health in Toronto and have been recommended for surgery as of October 1, 1998.....
[4] In [Hogan v. Ontario (Health and Long Term Care), 2006 HRTO 32](https://www.minicounsel.ca/hrto/2006/32), which dealt with four complaints heard together, the Tribunal held that the de-listing of sex reassignment surgery in October 1998 was not discriminatory. The Tribunal also held that although the de-listing itself was not discriminatory, the grandparent provision was discriminatory because it failed to accommodate the claimants who had commenced treatment towards sex reassignment surgery at the time of de-listing. The Tribunal held that Ontario failed to accommodate three of the four complainants who had begun their transition prior to the de-listing of the benefit. The Tribunal extended the time to obtain sex reassignment surgery for a period of up to six years from the date of commencing the transition. For one claimant, the time was extended to February 11, 2004.
[5] The decision in Hogan was subsequently appealed by the complainants in that case. The complaints in the cases before me were filed while the Hogan matter was before the Tribunal or during the time it was under appeal. As a result, they were not considered together with the complaints in Hogan.
[6] The sex reassignment surgery benefit was re-listed by the government in June 2008. The appeal of the Hogan decision was abandoned after the benefit was re-listed.
[7] The complainants in these cases commenced their transition at different times between 1997 and 2000. They also had sex reassignment surgery at their own expense at different times in 2002, 2003, 2005 and 2006.
[8] The Ontario Human Rights Commission (the “Commission”) is asking the Tribunal to not follow its decision in Hogan on the basis that its reasoning was flawed. The Commission does not propose to call different evidence from the evidence called in Hogan. Instead, it proposes to file the transcripts in Hogan and asks the Tribunal to reach different conclusions on the basis of that evidence. If required, the Commission would call two experts to give viva voce evidence, although their evidence would be the same evidence as that given in Hogan. The Commission has filed outlines of their anticipated evidence and it appears that these were the same outlines as provided in Hogan.
[9] Ontario has filed a Request for an Order During Proceedings seeking a dismissal of these complaints on the basis that it would be an abuse of process to re-litigate the issues in Hogan. Alternatively, Ontario asks the Tribunal to dismiss the complaints under section 45.1 of the Code because the issues were appropriately dealt with in Hogan. Finally, Ontario argues the Commission’s attempt to re-litigate Hogan is contrary to the importance of maintaining consistency in the Tribunal’s decision-making.
[10] Given the complexity of the issues raised in these complaints and the evidence called relating to those issues, fairness requires that I hear the oral evidence directly. I do not believe the evidence can be properly heard and assimilated by me through the wholesale filing of voluminous transcripts. Furthermore, the evidence in Hogan does not address the situation of these complainants. In particular, it does not address the impact of the gap period between the de-listing and re-listing of the benefit. Accordingly, the Commission’s request to file transcripts in Hogan is denied.
[11] Although I will not determine this matter on the basis of transcribed evidence, the Commission proposes to call the same viva voce evidence as was called in Hogan. This raises the question as to whether the Commission can re-litigate the issue in Hogan, specifically the delisting of sex reassignment surgery in October 1998, based on the same evidence in Hogan. Ontario has taken the position that the Commission cannot do so and has requested an order dismissing the complaints on this basis. A hearing date will be set by the Registrar to determine this issue.
[12] Within 30 days of the date of this Interim Decision, Ontario shall deliver in writing its legal argument in support of its Request for an Order. Within 60 days of this Interim Decision, the Commission and the Complainants (if they wish) shall respond with their written legal argument. Ontario may reply to the Commission’s and the Complainants’ submissions within 15 days of receipt.
[13] The written submissions filed by the parties raise many issues, some of which are noted below. I would be grateful if the parties could address these questions when preparing their written materials and oral submissions:
(a) Can or should the Tribunal reconsider the issue of the de-listing of sex reassignment surgery in 1998 on the basis of the same or similar evidence to that called in Hogan?
(b) If the Tribunal can or should reconsider an issue that has been previously decided by the Tribunal on the basis of the same evidence, can I as a single member of the Tribunal decline to follow a decision of a panel of the Tribunal?
(c) If I cannot or should not re-decide the issue in Hogan based on the same evidence in Hogan, is there different evidence today than there was in Hogan?
(d) If Hogan does apply, are any of these complainants entitled to the accommodation that was found to be required in Hogan?
(e) Finally, are there issues in this case that were not decided in Hogan? For example:
(i) Can Ontario de-list and re-list sex reassignment surgery without considering the impact of its actions on these complainants?
(ii) Is the failure to fund ancillary services in addition to sex reassignment surgery discriminatory?
(iii) Do the criteria for sex reassignment surgery apply when the benefit did not exist?
[14] It is anticipated that the hearing of the Request for an Order will take place in October 2011, subject to the parties’ availability.
Dated at Toronto, this 11th day of July, 2011.
“Signed by”
Jennifer Scott
Vice-chair