Ilha v. Ontario (Health and Long-Term Care), 2011 HRTO 814

Ana Ilha

Applicant

-and-

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

Respondent

Amir Attaran

Applicant

-and-

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

Respondent

Robert Mesher

Applicant

-and-

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

Respondent

Betty Lobo

Applicant

-and-

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

Respondent

Adjudicator: Michelle Flaherty

Date: April 26, 2011

Citation: 2011 HRTO 814

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

Appearances

Ana Ilha, Amir Attaran, Robert Mesher ) and Betty Lobo, Applicants ) Anne Levesque, Counsel

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

1This Interim Decision is about the respondent’s claim of public interest immunity over documents relating to the study and consideration of a report on infertility (“Documents”). Public interest immunity is a doctrine of common law that applies in certain circumstances and allows the Crown to exempt sensitive information from disclosure when it is in the public interest to do so. The preliminary issue before me is whether, in the circumstances of this case, the respondent has established public interest immunity over the Documents.

2The applicants have filed a Request for Order During Proceedings seeking the disclosure of the Documents. In essence, the applicants argue that the respondent has not established public interest immunity and that the public interest favours disclosure in the circumstances.

3The applicants have confirmed that they are not disputing the respondent’s claims of solicitor-client privilege and litigation privilege. Accordingly, for the purpose of this Interim Decision, the only issue before me is whether the respondent has established public interest immunity over the Documents.

4In support of its position, the respondent filed the affidavit of David Hallet, Associate Deputy Minister of Health and Long-Term Care (“Hallet Affidavit”). The parties conducted written interrogatories on the Hallet Affidavit; the applicants’ questions and Mr. Hallet’s responses were filed with the Tribunal. The parties filed written submissions on the legal issues and, on March 25, 2011, they made oral submissions before the Tribunal.

5I have carefully considered the arguments advanced by both parties. For the reasons that follow, I am unable to determine the public interest immunity issue at this stage of the proceedings. My decision is without prejudice to the applicants’ ability to request disclosure of Documents over which public interest immunity is claimed at a later stage.

6A number of the Documents relate to the cost of funding in vitro fertilization treatments (“IVF”) more broadly. The difficulty in determining the public interest immunity issue is that the respondent’s position on undue hardship is not yet clear.

7The respondent requested an opportunity to clarify whether it would be advancing an undue hardship argument at the hearing of these matters on the merits. The respondent also requested an opportunity to clarify its position regarding some of the factual conclusions of an expert Panel Report on Infertility and Adoption commissioned by the respondent and issued in August of 2009 (the “Report”). Until these clarifications are provided, the Tribunal cannot fairly assess the importance of a number of the Documents to the Applications.

8In a Case Assessment Direction dated March 28, 2011 (“CAD”), the Tribunal set out a process for the exchange of information and the preparation of detailed statements of fact. Once this information is exchanged and the parties’ positions are clearer, it may be appropriate to hear further submissions from the parties on the public interest immunity issue.

OVERVIEW

9The applicants filed Applications 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 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 IVF treatments, although funding for this treatment is provided in other circumstances of infertility. The respondent denies the allegations of discrimination.

10In a series of earlier Interim Decision, the Applications were consolidated and a Lead Case was designated: 2010 HRTO 32; 2010 HRTO 594; and 2010 HRTO 2402.

11The Documents that give rise to the public interest immunity claim relate to the respondent’s consideration of the Report. The Report reached a number of factual conclusions and, among other things, recommended that the respondent fund IVF treatments more broadly than it currently does.

12The respondent states that the Documents were generated in the context of a “current, ongoing policy development process”. According to the respondent, the Documents include:

(...) briefing materials for the Minister of Health and Long-Term Care and the Deputy Minister of Health and Long-Term Care, as well as the work-product (including internal communications) created by public servants in preparing such briefing materials. The focus of these documents is Ontario’s policy consideration and potential responses to the numerous recommendations made by the Expert Panel on Infertility and Adoption in August 2009.

13Although the applicants are seeking the disclosure of all of the Documents over which public interest immunity is claimed, their submissions focused on a subset of documents that relate to a series of factual conclusions reached in the Report and identified by the applicants in the written interrogatories (“Factual Conclusions”). The applicants argue that those Documents relating to the Factual Conclusions, in particular, ought to be disclosed in the interest of the administration of justice and given their importance to the applicants’ case. The applicants describe themselves as public interest litigants and argue that the Documents regarding the Factual Conclusions are important because:

a. their disclosure may avoid the need for the applicants to present evidence through their own experts and expert reports; and

b. the respondent has not yet taken a clear position regarding some of the Factual Conclusions. To the extent that the respondent intends to challenge a Factual Conclusion at the hearing of this matter, it ought to disclose not just the documents that form the basis of the challenge, but all of the documents it has generated regarding any contested Factual Conclusion.

14During oral submissions, counsel for the applicants advised the Tribunal that, had the respondent accepted the Factual Conclusions or agreed not to challenge them at the hearing on the merits, the applicants would have withdrawn their objection to the respondent’s public interest immunity claim. The parties explicitly waived any privilege claim over settlement positions regarding this issue.

15In response to questions from the Tribunal, counsel for the applicants indicated that she may be seeking to rely on further factual conclusions reached in the Report but not specifically addressed in the written interrogatories (“Further Factual Conclusions”).

16Before the Tribunal, the applicants objected to the public interest immunity claim, generally, and seek disclosure of all of the Documents. While counsel made extensive arguments about how Documents related to the Factual Conclusions were important to the applicants’ case, she did not, however, make submissions regarding the importance of the remainder of the Documents (i.e. those that do not relate to Factual Conclusions).

17The written interrogatories are set out, in full, below. At this stage, however, it is useful to mention that many of the Factual Conclusions relate to the cost of funding IVF treatments more broadly, as recommended in the Report.

18Mr. Hallet’s responses to the interrogatories are also set out in full. Generally speaking, Hallet either takes an ambiguous position regarding the Factual Conclusions or he takes no position, stating that he can neither agree nor disagree with them.

19In response to questions from the Tribunal, counsel for the respondent stated that she would clarify Hallet’s responses regarding questions A and B. She also stated that with the exception of specific concessions that arise out of these clarifications, the respondent reserves the right to challenge the Factual Conclusions at the hearing of these Applications on the merits.

20In a Case Assessment Direction dated. March 28, 2011, the Tribunal provided directions and timelines to the parties in order to:

a. establish whether, at the hearing on the merits, the respondent will argue that the remedies sought by the applicants would create an undue hardship;

b. establish whether, at the hearing on the merits, the applicants are seeking to rely on any Further Factual Conclusions from the Report;

c. establish or clarifying the respondent’s position regarding the Factual Conclusions and Further Factual Conclusions, if any; and

d. create a detailed and complete statement of facts for each party and, if possible, an agreed statement regarding some facts.

WRITTEN INTERROGATORIES REGARDING THE FACTUAL CONCLUSIONS

21Because of their importance to my determination of the preliminary issue, I have set out the written interrogatories in full as they relate to the Factual Conclusions. I have included the complete content of the interrogatories regarding the Factual Conclusions, although I have changed the format for ease of reference:

Factual Conclusion A

Both female and male infertility decline with age - although at different ages and at different rates. The risk of miscarriage, stillbirth and fetal abnormalities increases with the father’s age. A 35 year-old woman trying to conceive with a 40 year-old man is twice as likely to miscarry as a woman of similar age who conceives with a man under 40. When the father is over 40, the risk of having a child with birth defects, such as Down’s syndrome, abnormalities of the extremities and nervous system, and multiple malformations, doubles. (p.90 of the Report)

Hallet response

Multiple, independent peer-reviewed articles indicate that both female and male fertility decline with age. Multiple, independent, peer-reviewed articles also document that the risk of miscarriage, stillbirth and fetal abnormalities increase with advanced paternal age. We cannot agree or disagree with the specific illustrative scenarios referred to in the excerpt. The report does not refer to primary literature.

*At the hearing, the respondent has indicated that it will clarify whether it accepts this or part of this Factual Conclusion.

Factual Conclusion B

The average hospital cost to care for multiple births is consistently higher than caring for singletons. Multiples are 17 times more likely to be born pre-term, and being pre-term is a key factor in how much a child will cost the health care system. Multiple births are more likely to require caesarean delivery, which is more expensive than a vaginal delivery. Also, multiple births are more likely to have low birth weights and require specialized, intensive care at birth. These high costs can continue through life as a number of multiple birth children struggle with neurological problems such as cerebral palsy, as well as physical and developmental disabilities. On average, over the lifetime of a low birth weight baby, health care and education costs exceed $1 million (p.111 [of the Report])

Hallet response

It is well understood that infants born from multiple gestation pregnancies are more likely than infants born from singleton pregnancies to be pre-term, and to require NICU [neonatal intensive care unit] care. The Ministry is reviewing all available, up-to-date, and jurisdiction-relevant information related to interventions and outcomes associated with a reduction in the multiple birth rate. The Ministry cannot at this time agree or disagree with the dollar figure cited in the Expert Panel’s Report.

At the hearing, the respondent has indicated that it will clarify whether it accepts this or part of this Factual Conclusion.

Factual Conclusion C

Ontario is out of step with a number of other jurisdictions that fund IVF - all of whom have lower rates of multiple births than Ontario. The decision to fund IVF is usually driven by the desire to reduce multiple births and their health and social costs. By paying for procedures like IVF, countries have been able to reduce the risk of people having twins or triplets while still containing health costs and maintaining the number of live births (p. 113 [of the Report])

Hallet response

Different jurisdictions have different approaches to funding IVF. The Ministry has no knowledge of the basis on which IVF is funded or not funded in other jurisdictions. Few jurisdictions have published information on what they consider to be the costs or cost savings associated with funding IVF.

Factual Conclusion D

Funding IVF will reduce hospital and other health care costs and improve the health of mothers and babies across the province. We estimate that by following our recommendations, Ontario could save $400-$550 million over the next 10 years by reducing multiple births born from assisted reproduction. The Province would see another $300-$460 million (2009 dollars) in savings that would have been spend on these children over their lifetimes. The savings in health costs could be used to offset the costs of providing assisted reproduction services. (p. 113 [of the Report])

Hallet response

The Ministry cannot agree or disagree with this statement. The Ministry is reviewing all available, up-to-date, and jurisdiction-relevant information related to the potential cost-savings associated with a funded IVF program. Determining real cost savings or actual cost avoidance is inherently difficult.

Factual Conclusion E

Babies born from assisted reproduction make up to 1% to 2% of all live births in Ontario, but - because of the high rate of multiple births - they account for 20% of all the babies admitted to the neonatal intensive care unit (NICU) each year. It is very expensive to care for babies who require NICU services (p.114 [of the Report])

Hallet response

The source for this statistic is not cited in the Expert Panel’s Report. We are aware of no Ontario data source that could validate this information. The Ministry agrees that, generally, a baby requiring NICU care results in more medical costs than one that does not.

Factual Conclusion F

By funding assisted reproduction services, we estimate that, over the next 10 years, Ontario would have 7,042 more babies born than if the current situation remains unchanged. More importantly, these babies would be more likely to be single, healthy babies - giving them the best beginning in life (p. 114 [of the Report])

Hallet response

We are unable to agree or disagree with respect to the number of babies that would be born if the Expert Panel’s recommendations regarding the funding of IVF were adopted. The Ministry is reviewing all available, up-to-date, and jurisdiction-relevant information related to the potential outcomes associated with a funded IVF program. It is well understood that multiple gestation pregnancies are more likely than singleton pregnancies to be born pre-term, and to require NICU care.

Factual Conclusion G

There is shame and stigma associated with infertility that means some people never seek assisted reproduction services. Many people are embarrassed or ashamed to admit that they are struggling with infertility. They may not be aware of how many other people are struggling with infertility right now: one in six couples has struggled with infertility at some point in their lives. There is also a stigma associated with infertility. This stigma makes it difficult for some people to seek treatment or feel supported (p.134 [of the Report])

Hallet response

The statistic that one in six couples struggles with infertility at some point in their lives is frequently cited in the epidemiology literature. There is no population based survey or health services data that can verify that this epidemiological statement is valid in the province of Ontario. We cannot agree or disagree with the subjective views of those who may or may not seek fertility treatments.

ANALYSIS

Are the Documents arguably relevant?

22As the respondent is only required to disclose documents that are arguably relevant to the proceedings, the issue of whether public interest immunity is properly claimed arises only if the Documents are arguably relevant.

23Based on the positions taken by the parties at this stage of the proceedings, I am satisfied that the documents are arguably relevant and that, if the respondent cannot establish public interest immunity, they must be disclosed to the applicants.

24I note that the respondent included the Documents in its list of arguably relevant documents. While, at the hearing, the respondent argued that the documents meet only a generous interpretation of “arguably relevant”, that is the appropriate test at this stage of the analysis.

Legal principles

25Having found that the Documents are arguably relevant, I must determine whether public interest immunity is properly claimed in the circumstances. The burden of establishing public interest immunity rests with the respondent.

26The leading case in this area is Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637 (“Carey”) where the Supreme Court of Canada discussed the general principles relevant to public interest immunity as follows (at paras. 79 and 80):

(...) Cabinet documents like other evidence must be disclosed unless such disclosure would interfere with the public interest. The fact that such documents concern the decision-making process at the highest level of government cannot, however, be ignored. Courts must proceed with caution in having them produced. But the level of the decision-making process concerned is only one of many variables to be taken into account. The nature of the policy concerned and the particular contents of the documents are, I would have thought, even more important. So far as the protection of the decision-making process is concerned, too, the time when a document or information is to be revealed is an extremely important factor. Revelations of Cabinet discussion and planning at the developmental stage or other circumstances when there is keen public interest in the subject matter might seriously inhibit the proper functioning of Cabinet government, but this can scarcely be the case when low level policy that has long become of little public interest is involved.

To these considerations, and they are not all, one must, of course, add the importance of producing the documents in the interests of the administration of justice. On the latter question, such issues as the importance of the case and the need or desirability of producing the documents to ensure that it can be adequately and fairly presented are factors to be placed in the balance. In doing this, it is well to remember that only the particular facts relating to the case are revealed. This is not a serious departure from the general regime of secrecy that surrounds high level government decisions.

27In sum, in considering the issues of public interest immunity, the Tribunal must balance two different and competing public interests: (a) the public interest in keeping sensitive government matters and decision-making processes secret; and (b) the public interest in the open administration of justice and the exchange of documents.

28In Leeds v. Alberta (Minister of the Environment), 1990 CanLII 5933 (A.B.Q.B.), the Court summarized the factors relevant to the public interest immunity balancing exercise as follows:

a. the nature of the policy at issue;

b. the timing of any disclosure;

c. the level of the decision-making process;

d. the content of the documents;

e. the importance of the disclosure of the documents in terms of the administration of justice, with consideration for the importance of the documents to the case, (including the ability of a party to be fairly and adequately represented), and the ability to ensure that only the particular facts relating to the case are revealed; and

f. any allegation of improper conduct by the executive branch.

29In considering the public interest immunity issues raised in this case, it is helpful to consider the Documents in three categories:

a. documents that relate to the respondent’s review of the costing conclusions contained in the Report;

b. documents that relate to the Factual Conclusions in the Report that the applicants have identified (or that they will identify) as factual conclusions they wish to rely on at the hearing on the merits; and

c. the remainder of the Documents generated by the respondent regarding the Report.

30As I have indicated, many of the Factual Conclusions relate principally to costing issues. This is the case for Factual Conclusions B, D, E, and F. To some extent, Factual Conclusion C also relates to costing.

31I am not in a position to evaluate, based on the Carey factors, whether or not the Documents that fall into the costing category ought to be disclosed. The importance of the disclosure of Documents that relate to costing will depend largely on whether or not the respondent intends to rely upon an undue hardship argument. Until the respondent has taken a position on this issue, I cannot fairly evaluate the public interest immunity claim for Documents relating to costing.

32Counsel for the respondent has indicated that she will, of course, provide the applicants with any documents upon which she intends to rely at the hearing on the merits. It seems to me that the issue may well be broader than that. Once the respondent has taken a position on undue hardship, it may be necessary to evaluate whether not only the documents that support the respondent’s position but all Documents that relate to costing must be disclosed in light of the doctrine of public interest immunity.

33For obvious reasons, I am also not in a position to determine whether Documents relating to any Further Factual Conclusions ought to be disclosed. Again, the Case Assessment Direction sets up a process for the applicants to set out any Further Factual Conclusions they wish to rely upon and for obtaining the respondent’s position regarding those Further Factual Conclusions. It may be appropriate to allow the parties to make submissions on the Further Factual Conclusions once the Case Assessment Direction has been complied with.

34The remaining Factual Conclusions are A and, to some extent, C. In regard to Factual Conclusion A, Hallet’s response was, in essence, that “multiple, independent, peer-reviewed articles” document that both female and male fertility decline with age, and that the risk of miscarriage, stillbirth, and fetal abnormalities increase with advanced paternal age. Hallet indicated that he can neither agree nor disagree with the specific illustrative scenarios referred to in the excerpt.

35During oral submissions, counsel for the respondent said that this response, in fact, means that Hallet agrees with Factual Conclusion A, with the exception of the illustrative scenario. However, she indicated that she wished to formulate her client’s position in writing. The CAD sets out a timeframe for doing so.

36Until the respondent has clarified its position, and until the applicants have had an opportunity to make submissions in response, it is difficult for me to assess the importance of the disclosure of Documents regarding Factual Conclusion A to the applicants’ case. I note that while counsel for the applicant argued for clarification of the respondent’s position in this regard, she did not make submissions regarding the importance of the illustrative scenarios mentioned in the Report.

37In regards to Factual Conclusion C, Hallet’s response was that the respondent has no particular knowledge of IVF funding in other jurisdictions. In light of this response, it is not clear whether the respondent is claiming public interest immunity over any Documents in regards to Factual Conclusion C. Accordingly, I am not in a position to determine the public interest immunity claim, if any, over the Documents relating to Factual Conclusion C.

38Finally, I address the remainder of the Documents generated by the respondent regarding the Report. While they are arguably relevant to the proceeding, counsel for the applicant did not make submissions that they are of particular importance to the applicants’ case, nor did she specifically argue that an application of the Carey factors favours their disclosure.

39Until the respondent has clarified its position and until the parties have produced detailed statement of facts, it would be premature for me to decide whether public interest immunity attaches to the remainder of the Documents.

ORDER

40For the above reasons, public interest immunity issues cannot be determined at this stage of the proceedings. This Interim Decision is without prejudice to the applicants’ right to dispute any public interest immunity claimed as the hearing advances.

41The Tribunal has already given directions to the parties regarding the exchange of additional information and statements of fact. In addition, the Tribunal orders the following:

a. within 45 days of this Interim Decision, the respondent must provide a list of any documents that constitute the “available, up-to-date, and jurisdiction-relevant information” being reviewed (as described by Hallet). The respondent must describe (for each document) whether public interest immunity is claimed and whether the content of the document relates to facts, policy analysis, or a mixture of both.

b. within 45 days of this Interim Decision, the respondent must advise the Tribunal and counsel for the applicant whether it is claiming public interest immunity over any documents relating to Factual Conclusion C and, if so, it must provide a list of those documents.

Dated at Toronto, this 26^th^ day of April, 2011.

”signed by”__________

Michelle Flaherty

Vice-chair