Brodeur v. Ontario (Health and Long Term Care), 2011 HRTO 576

Human Rights Tribunal of Ontario

Between:

Michelle Brodeur Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Health and Long Term Care Respondent

And Between:

Erica McCowan 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: Naomi Overend Date: March 23, 2011 Citation: 2011 HRTO 576 Indexed as: Brodeur v. Ontario (Health and Long Term Care)

Reasons for Decision

1In Application 2010-07427-I the applicant alleges discrimination in the provision of services on the basis of sex contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Application 2010-07428-I raises the same issues. The respondent in both Applications is the same.

2In its Response to both Applications, the respondent requested that the Tribunal defer proceeding with the Applications pending the outcome of another proceeding before the Human Rights Tribunal of Ontario (HRTO) involving the respondent, but different complainants.

3When the Tribunal delivered the Responses to the applicants, it specifically referred to the respondent’s deferral request and asked the applicants to provide submissions in response to the Request by February 25, 2011. The applicants did not make any submissions or file a Reply and the time for so doing has now passed.

4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

5In the instant cases, the applicants are challenging the respondent’s requirement that they complete the Gender Identity Clinic program at the Centre for Addiction and Mental Health (CAMH) before the respondent will insure the cost of gender reassignment surgery. The respondent states that this requirement is being challenged in four Commission referred complaints currently before the HRTO.

6While it is true that these four cases are at the hearing stage before the HRTO, the primary issue in that litigation is the then de-listing of gender reassignment surgery from the OHIP Schedule of Benefits. The issue of the requirement to attend CAMH is a secondary issue in that litigation and may, in the end, not be addressed by the Tribunal. Moreover, it is not clear when that litigation will conclude and a decision rendered in that matter.

7In light of the above, it is not appropriate to defer these proceedings to the conclusion of that other proceeding. Accordingly, the respondent’s Request to defer the Applications is dismissed. The Applications will be processed in the normal course.

Consolidation

8Given the overlap of issues and the responding party the parties are directed to deliver to each other and file with the Tribunal any written submissions concerning consolidation of these Applications by March 31, 2011.

9I am not seized of this matter.