Silveira v. Ontario (Minister of Government Services), 2011 HRTO 249

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lucas Silveira

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: February 4, 2011

Citation: 2011 HRTO 249

Indexed as: Silveira v. Ontario (Minister of Government Services)

WRITTEN SUBMISSIONS

Lucas Camões Freitas Silveira, Applicant ) Jo-Ann Seamon, Counsel

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

As Represented by the Ministry of Government )

Services, Respondent )

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The applicant states that he is a transgender man who has been living as a man for over five years and has not undergone surgery. He wishes to have the sex designation on his birth certificate changed, but under s. 36 of the Vital Statistics Act, R.S.O. 1990, c. V.4 (“VSA”) this is only possible if he has undergone “transsexual surgery”.

2The Application was filed on December 22, 2010. On January 20, 2011, the Tribunal issued a Case Assessment Direction proposing that the Application be deferred pending the decision in XY v. Ontario, which also involves a challenge to the requirement for surgery in order to change the designation on a birth certificate. It referred the parties to the Tribunal’s decision in McIntosh v. Ontario (Government Services), 2010 HRTO 2363, in which another case challenging s. 36 of the VSA was deferred pending the decision in XY. Hearings in the XY case are now complete and the decision is under reserve. The Tribunal invited submissions from any party opposing deferral and advised that any party supporting deferral need not make submissions. The respondent supports deferral.

3The applicant opposes deferral. He asserts that to defer this case “assumes that all Code challenges to the VSA by transgender persons are the same”. He asserts that this is not so, since in this case, unlike XY, the applicant has not undergone surgery, does not intend to do so and has not received a birth certificate that reflects his male gender identity. He points to the fact that unlike XY, he continues to live with incongruent identity documents because his birth certificate does not match his lived gender. He states that his occupation requires him to travel outside Canada frequently, and he is repeatedly forced through the humiliating experience of having to explain why his identity documents do not match his lived gender.

4Counsel for the applicant states that delaying the processing of the Application, including the possibility of mediation, is “unjust” in light of his particular circumstances and “there is no pressing reason to depart from the normal HRTO filing procedure at this juncture”. The applicant argues that there “is no prejudice to the respondent in filing its response, as it would have but for the Tribunal’s Case Assessment Direction”. It states that the “Applicant is aware that the scheduling of a mediation (or a hearing for that matter) could be no earlier than the fall of 2011”. He states that if there is no final decision at the time the matter would be sent to hearing scheduling, the issue of deferral can be revisited.

ANALYSIS

5I begin by addressing two ways in which the applicant’s submissions reflect a misunderstanding of the Tribunal’s process. First, it is not a departure from the “normal HRTO filing procedure” to request submissions on deferral prior to the filing of a Response. The Tribunal reviews all files and may identify issues such as deferral, jurisdictional questions, or reasonable prospect of success and seek submissions on them prior to requiring the filing of a Response. Where deferral appears appropriate to it, the Tribunal seeks submissions on deferral prior to requiring a Response. This is often done through a Notice of Intent to Defer but to give the parties more details about the issues the Tribunal may issue a Case Assessment Direction as it did here.

6The applicant’s understanding that a mediation could not be scheduled until the fall of 2011, even if the Application were not deferred, is also incorrect. The Tribunal expects that a mediation would be scheduled earlier. I note, for example, that mediations are currently being scheduled for Applications that were accepted as complete in the summer and early fall of 2010. The Tribunal expects these timeframes to become even shorter in the months ahead.

7Turning to the merits of the deferral issue, deferral is appropriate. The applicant makes no argument distinguishing this case from McIntosh, in which similar arguments were made by that applicant, also represented by the Human Rights Legal Support Centre. In McIntosh, the Tribunal held that while there may be differences in the claims, it was appropriate to await the Tribunal’s decision in XY on the complex issues involved before proceeding with another challenge to s. 36 of the VSA. The Tribunal stated as follows, at para. 13:

Whether 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.

8The Tribunal has, in other circumstances, applied a “lead case” approach to challenges to statutory provisions even where the issues are not identical: see, for example, Ball v. Ontario (Community and Social Services), 2008 HRTO 24; Pilon v. Ontario (Community and Social Services), 2008 HRTO 380. In that circumstance, all the complaints were filed at the same time, while at this time the applicant’s Application was filed long after the litigation in the XY case had proceeded. Considering not only the interests of the applicant, but the effects on both parties and on a fair and effective dispute resolution process, it is fair and reasonable to wait for the result of the challenge to s. 36 of the VSA in XY. There is no doubt that the decision in that case will have a significant impact on the content of the respondent’s Response and the ability of the parties to reach any agreement, and that decision could render significant aspects of the Application moot.

9A Response by the respondent without knowledge of the decision in XY would be nearly meaningless and would require significant amendment as soon as the XY decision came out. In my view, a mediation is likely to be unproductive while XY is under reserve but the applicant and respondent, who are both represented by experienced and knowledgeable counsel, are certainly able to discuss settlement. However, it would not be an appropriate use of the resources of the Tribunal or the respondent, both of which are publicly funded, to proceed with the formal steps in this Application while a decision involving complex, contentious, and legally uncertain issues that will fundamentally affect it is under reserve.

10Accordingly, 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.