Elizabeth Woodwork v. Canadian Blood Services, 2012 HRTO 2219

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Woodwork Applicant

-and-

Canadian Blood Services Respondent

-and-

Ontario Human Rights Commission Intervenor

DECISION

Adjudicator: Pamela Chapman Date: November 27, 2012 Citation: 2012 HRTO 2219 Indexed as: Woodwork v. Canadian Blood Services

APPEARANCES

Elizabeth Woodwork, Applicant Self-represented

Canadian Blood Services, Respondent Mary Gleason and Karen Jensen, Counsel

Ontario Human Rights Commission, Intervenor Cathy Pike, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability.

2The applicant Elizabeth Woodwork complains that the respondent Canadian Blood Services (“CBS”) discriminated against her on the basis of disability when it permanently medically deferred her application to become a candidate for stem cell donation. She has filed complaints to both the Tribunal and the Canadian Human Rights Commission (“CHRC”), which deals with human rights complaints in federal jurisdiction.

3CBS denies any breach of the Code, but also takes the position that the Application, because it deals with donor assessment and selection, falls under federal jurisdiction. As a preliminary matter, it seeks an order dismissing the Application as outside the Tribunal’s jurisdiction. The applicant asks the Tribunal to proceed with the Application.

4The Ontario Human Rights Commission (“the Commission”) sought to intervene in this matter, and was granted intervenor status by decision of the Tribunal. It agrees that the Application falls within federal jurisdiction.

5The Tribunal accepted written submissions on this matter from both parties, and from the intervenor. An oral hearing was held, in order that the respondent might call evidence concerning the donor assessment and selection process; the applicant chose to participate in that hearing by telephone, rather than attend in person, and the intervenor advised that it would rely entirely on its written submissions. Subsequent to the oral hearing further submissions in writing were accepted from both parties, as decisions relevant to the Application were released in other jurisdictions.

LEGAL ISSUES & PRINCIPLES

6This Application raises the general issue of whether a human rights complaint challenging the actions of CBS in screening stem cell donors falls within provincial or federal jurisdiction. If federal, the Application must be dismissed, as the Tribunal would have no jurisdiction to hear it.

7The more precise issues to be determined in this Decision are:

(i) Does the federal government have valid constitutional authority to regulate donor selection and screening criteria for stem cell transplants?

(ii) If so, does the Code apply to the use by CBS of federal donor selection criteria for stem cell transplants to screen potential donors from Ontario?

8The division of powers between the federal and provincial governments in Canada is governed by sections 91 and 92 of the Constitution Act, 1867 (U.K.), 30 & 31, Vict. c. 3. Section 91 assigns to the federal government a general power to make laws for the “Peace, Order, and good Government of Canada”, in relation to all matters not coming within exclusive provincial jurisdiction, and then lists a number of specific subjects which fall within federal jurisdiction, including criminal law (s. 91(27)). I must consider whether or not these provisions give authority to the federal government to regulate stem cell donations.

9Section 92 (13) gives the provinces legislative authority over “property and civil rights”, which has been interpreted as granting them jurisdiction over labour relations and human rights. However, the federal government retains jurisdiction over human rights in respect of federal undertakings. I must consider the interplay between this provincial power over human rights, which Ontario has exercised by legislating the Code and establishing the Tribunal, with any federal power over the screening and selection of stem cell donors. I must also consider the existence of a parallel federal human rights system established by the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“the CHRA”), under which the applicant has also filed a complaint.

10Finally, I must determine whether or not the Application should be dismissed. According to Rule 13.1, the Tribunal may, on its own initiative or at the request of a respondent, dismiss part or all of an Application that is outside the jurisdiction of the Tribunal. The respondent in the present case asks that it dismiss the Application on this basis.

CONCLUSION

11For the reasons set out below, I find that the application falls within federal jurisdiction, and is thus outside the jurisdiction of the Tribunal.

SUMMARY OF EVIDENCE, ANALYSIS & DECISION

Background

12CBS is a not-for-profit charitable organization which manages the blood and blood products supply system in all of Canada except for Quebec. It is also responsible for the OneMatch Stem Cell and Marrow Network (“OneMatch”), through which stem cell and bone marrow transplants are arranged throughout Canada. OneMatch is accredited internationally, so that Canadians can access, or make, donations globally. Through OneMatch, CBS operates, maintains and administers a registry of volunteer potential donors of stem cells, and coordinates searches in its registry and internationally in order to match donors to recipients, and facilitate safe transplants.

13A core function of the OneMatch program is the screening and selection of volunteer donors, prior to their placement on the registry. Donors must meet a variety of eligibility requirements and undergo a comprehensive health assessment. A potential donor with significant health problems will be screened out of consideration, to protect him or herself, as well as any stem cell recipient. A deferral may be either temporary or permanent, depending on the nature of the potential donor’s medical condition.

14The applicant applied to become a blood marrow donor. At the second stage of the stem cell donor screening process administered by CBS, she provided information that raised medical concerns about the safety of the blood marrow collection process for her. Because of these concerns, CBS determined that the applicant was not a suitable stem cell donation candidate, and denied her application to become a donor, permanently deferring her on medical grounds.

Federal regulation of stem cell donations

15I heard evidence concerning the regulation of the stem cell donor program, OneMatch, to which the applicant applied.

16Stem cell donations in Canada are regulated through the Food and Drugs Act, R.S.C. 1985, c. F-27 (“FDA”), a federal Act, and in particular though the Safety of Human Cells, Tissues and Organs for Transplantation regulations (SOR/2007-118) (“CTO Regulations”) passed by the federal government under the auspices of the Food and Drugs Act. The CTO regulations were adopted after a lengthy process of consultation between Health Canada and provincial and territorial governments, in order to develop a comprehensive and consistent regulatory framework governing the safety of human cell, tissue and organ transplants.

17These regulations in turn reference standards created by the Canadian Standards Association (“CSA”), a national organization, including CSA Standard CAN/CSA-Z900.1 – Cells, Tissues, and Organs for Transplantation and Assisted Reproduction: General Requirements, and CAN/CSA-Z900.2.5 – Lymphohematopoietic Cells for Transplantation. The CSA was contracted by Health Canada to develop a national standard, as part of the effort to create a regulatory framework which led to the CTO Regulations.

18International standards also play an important role in the regulation of stem cell donations. In order to permit Canadians to access international stem cell donor registries, CBS has been accredited by the World Marrow Donor Association (“the WMDA”). To maintain that accreditation, CBS must comply with the standards set by the WMDA. This is very important to the viability of Canada’s stem cell donation system; statistics provided by CBS disclose that approximately 80% of stem cell transplantations in Canada are from international stem cell donor sources.

19The CBS is given the authority to screen potential stem cell donors through the FDA and CTO regulations. CBS is subject to the regulatory authority of Health Canada, and must adhere to the CTO regulations in carrying out its role.

20The CTO Regulations, CSA standards, and WMDA standards prescribe the safety requirements applicable to the collection, processing and handling of stem cells. Section 22 of the CTO Regulations sets out requirements for the screening of potential donors for safety and suitability, including obtaining donor information and history, performing a physical examination, and the performance of various tests, including for the presence of certain diseases or disease agents. The regulations require the CBS to assess all of this information against the standard for lymphohematopoietic cells (which includes stem cells), and to determine that the donor is not “unsuitable to donate on the basis of the contraindications or exclusion criteria set out” in the standard, before a potential donor may be placed on the registry.

21While evidence has not yet been heard about the screening of the applicant after she applied to become a stem cell donor, it does not appear to be disputed that CBS applied this donor selection criteria, and utilized the process described above, to determine that her application should be permanently deferred on medical grounds.

Federal and provincial jurisdiction over health

22The division of powers between the federal and provincial governments is governed by the Constitution Act, 1867. Health care and the regulation of matters relating to health are not specifically inventoried as falling within either provincial or federal jurisdiction, although several references suggest that health care is principally a provincial responsibility, and this has been confirmed in earlier cases such as those discussed below.

23At the same time, the health of Canadians, and in particular the prevention of the spread of disease across provincial or international borders, has a federal dimension. The federal government has been found to retain some jurisdiction over health care through section 91 of the Constitution Act, which gives it the power to “make laws for the peace, order and good government of Canada” (the “POGG” power). Similarly, the criminal law power (s. 91(27)) may grant some federal authority over matters relating to health.

24This overlap in jurisdiction has been acknowledged in earlier cases, and establishes that the federal government may legislate and regulate in the sphere of health care where the matter addressed has a national dimension. The division between provincial and federal authority was addressed by the Supreme Court of Canada in Schneider v. The Queen (Province of British Columbia), 1982 CanLII 26 (SCC), [1982] 2 S.C.R. 112 at pp.141-2, as follows:

Health is not a subject specifically dealt with in the Constitution Act either in 1867 or by way of subsequent amendment. It is by the Constitution not assigned either to the federal or provincial legislative authority. Legislation dealing with health matters has been found within the provincial power where the approach in the legislation is to an aspect of health, local in nature. Vide: Fawcett v. Attorney-General for Ontario, 1964 CanLII 17 (SCC), [1964] S.C.R. 625; Re Bowack (1892), 1977 CanLII 305 (BC SC), 2 B.C.L.R. 216; Reference re Intoxicated Persons Detention Act, 1980 CanLII 3055 (MB CA), [1981] 1 W.W.R. 333 (Man. C.A.); and Greene v. Livermore, 1940 CanLII 93 (ON HCJ), [1940] O.R. 381. On the other hand, federal legislation in relation to “health” can be supported where the dimension of the problem is national rather than local in nature (see: Attorney-General for Ontario v. Canada Temperance Federation, 1946 CanLII 351 (UK JCPC), [1946] A.C. 193, at pp. 205-06; Toronto Electric Commissioners v. Snider, 1925 CanLII 331 (UK JCPC), [1925] A.C. 396, at p. 412), or where the health concern arises in the context of a public wrong and the response is a criminal prohibition. … In sum “health” is not a matter which is subject to specific constitutional assignment but instead is an amorphous topic which can be addressed by valid federal or provincial legislation, depending in the circumstances of each case on the nature or scope of the health problem in question.

Constitutional authority for federal regulation of stem cell donations

25Both the respondent and the Commission argue that the federal government has valid constitutional authority to regulate stem cell donations through the legislation, regulations and standards described above. This issue was not really disputed by the applicant.

26The source of that authority is said to be section 91(27) of the Constitution Act, 1867, which gives Parliament exclusive jurisdiction over criminal law, as well as the general POGG power under section 91.

27As noted above, the federal government has been found to have the authority to legislate in matters concerning health care where there is a national dimension to the problem being addressed, as well as in matters concerning public safety. The Food and Drugs Act has been subjected to constitutional scrutiny, and upheld as properly within the federal jurisdiction over criminal law based on the fact that “it has been well understood over many years that protection of food and other products against adulteration and to enforce standards of purity are properly assigned to the criminal law”: R. v. Wetmore, 1983 CanLII 29 (SCC), [1983] 2 S.C.R. 284 at p. 288. A number of cases have also recognized that POGG includes the grant of jurisdiction over matters of health of “inherent national concern” (See R. v. Crown Zellerbach Canada Ltd., 1988 CanLII 63 (SCC), [1988] 1 S.C.R. 401.)

28I am satisfied that both these heads of power authorize the federal government to regulate the safety of cells, tissues and organs, including stem cells. Federal authority to enact the FDA as a matter of criminal law has already been addressed by the Supreme Court of Canada. It is evident that Parliament, through the FDA and the regulations concerning transplants, has attempted to address a matter of important, national concern: the safety of voluntary stem cell donations across Canada. When the CBS exercises the authority given to it by the regulations to screen donors, and applies the donor screening criteria created by the CTO regulations, CSA and WMDA standards, it is acting in respect of a matter that is, at its essence, federal.

Application of human rights legislation to blood and stem cell donations

29The applicant argues that, even if the federal government has chosen to regulate aspects of the stem cell donation system in Canada, that does not change the authority of the provincial government to legislate and enforce human rights law.

30The provinces do have presumptive authority to legislate in the area of human rights, through the civil and property rights power in s. 92(13) of the Constitution Act, 1867. The applicant is correct that many individuals and organizations are subject to both federal and provincial regulation in different aspects of their operations.

31CBS is one such organization, and earlier decisions of human rights commissions, tribunals and courts have considered whether human rights complaints concerning CBS should be heard by federal or provincial tribunals, given that its operations fall within both provincial and federal jurisdiction in various respects. Until the complaints brought by this applicant, none of these decisions dealt with stem cell donations, but have focused on the larger program for blood collection and distribution which is at the core of CBS’s operations.

32In Neudorf v. Canadian Blood Services, [2005] BCHRT 265, the British Columbia Human Rights Tribunal found that CBS is subject to the regulatory authority of the federal government, and cannot change its screening criteria for blood donations without the approval of Health Canada. For that reason, the B.C. Tribunal declined to take jurisdiction over a human rights application dealing with the CBS policy to refuse blood donations from men who have had sex with other men (“the MSM criteria”).

33In two Ontario decisions made prior to the current system of direct access to the Tribunal, the Commission similarly dismissed complaints involving access to blood donation as falling outside its jurisdiction, concluding that the safety of the national blood supply is a matter of exclusive federal jurisdiction (See Lois Buckley v. Canadian Blood Services, Reasons for Decision, File No.LHOR-6KYQJW, Denis-Paul Cloutier v. Canadian Blood Services, Reasons for Decision, File No.GSEA-566SX5.)

34At the time that this matter was argued there was one decision, of the Manitoba Human Rights Commission, reaching the opposite conclusion, leading that commission to take jurisdiction over a complaint alleging a denial of services based on sexual orientation, because of the MSM criteria applied by CBS: Mark Zoldy v. Canadian Blood Services (2009), File No.08 En 346. However, that decision was quashed on judicial review, and the parties subsequently made submissions based on the ruling of the Manitoba Superior Court in Canadian Blood Services v. The Manitoba Human Rights Commission and Zoldy, 2011 MBQB 312. The reasoning of the judge in that matter will be reviewed in more detail below.

35While all of these decisions have concluded that the adoption and application of screening criteria to blood donations is a federal matter, that does not mean that all aspects of the CBS are beyond the reach of provincial human rights legislation. Earlier decisions have also confirmed that the labour relations of CBS fall under provincial jurisdiction, for example: see Newfoundland Association of Public Employees v. Canadian Red Cross and Canadian Blood Services, [1999] N.J. No. 60 (SCTD). It is important to note that the decision in the present case does not address constitutional authority over CBS as an entity, but only the particular activity at issue in this application, which is donor screening and selection for stem cell transplants.

36These decisions provide strong support for the conclusion that human rights applications concerning the criteria for stem cell donations, like blood donations, must fall outside the constitutional jurisdiction of provincial human rights commissions and tribunals. The process for regulating stem cell donations in Canada is similar to regulation of the blood system in important respects. Stem cell donation, like blood donation, is regulated by the federal government, through the FDA and its regulations. Donor selection criteria for both blood and stem cells are applied by CBS under the auspices of those federal regulations; stem cell donation criteria were also developed with reference to other national and international standards, including the CSA standards, and also WMDA standards which permit Canadians to participate safely in international donations.

37As noted above, the applicant has also filed a complaint to the Canadian Human Rights Commission (“the federal Commission”) alleging discrimination in the provision of services by CBS. At the time the hearing in this matter was held, federal Commission staff had considered the issue of constitutional jurisdiction over the applicant’s complaint, and issued a report recommending that the federal Commission proceed with the complaint. Subsequent to the hearing on the preliminary objection before this Tribunal, the federal Commission agreed with this recommendation and concluded that Ms. Woodwork’s complaint fell within federal jurisdiction, and that it could therefore proceed with her complaint. While the decision of the federal Commission is not binding upon the Tribunal, it provides additional support for the position of the respondent that a human rights complaint concerning donor screening and selection for stem cell transplants falls within the constitutional authority of the federal government, and should therefore be heard within the federal human rights system. As well, it raises concerns about the possibility of the same matter being heard and decided in two different forums.

Constitutional authority over the screening and selection of stem cell donors

38The decisions reviewed above dealing with the blood donation criteria applied by CBS, as well as the recent decision of the federal Commission to assume jurisdiction over the parallel application brought by Ms. Woodwork concerning stem cell donation criteria, provide some guidance on the issues to be decided in the present case. However, none of these earlier decisions, other than the recent Manitoba decision in Zoldy, explain very clearly the constitutional basis upon which the decisions as to jurisdiction were made.

39As reviewed in the Zoldy decision, Canadian courts have crafted various constitutional doctrines to resolve conflicts between federal and provincial authority, including interjurisdictional immunity and paramountcy. Both doctrines were argued by the respondent and the intervenor.

40The doctrine of interjurisdictional immunity establishes that provincial legislation is inapplicable to an undertaking or service that falls within Parliament’s jurisdiction, where the application of such legislation impairs the vital or essential part of that federal service or undertaking. The goal of the doctrine is to ensure that the classes of subjects in ss. 91 and 92 of the Constitution Act, 1867 maintain “basic, minimum and unassailable content immune from the application of legislation enacted by the other level of government”: Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3 at para. 33. (See as well Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, and Quebec (Attorney General) v. Lacombe, 2010 SCC 38.)

41Both the respondent and intervenor argued in the present case that the doctrine of interjurisdictional immunity should apply to ensure that the goal of federal regulation in this area is not impaired by provincial jurisdiction over human rights complaints.

42The doctrine was applied to resolve an earlier constitutional jurisdictional challenge involving a human rights application to the Ontario Human Rights Commission concerning the Canada Mortgage and Housing Corporation, cited by the respondent. The Ontario Court of Appeal held that the Commission lacked jurisdiction, applying the doctrine of interjurisdictional immunity and concluding that provincial human rights laws cannot impair the essential core of a federal power. The Court expressed concern that, if the doctrine was not applied to protect the federal spending power by which grants were provided by the CMHC, provincial legislation could, in effect, determine the terms and conditions upon which federal funds are expended: Canadian Mortgage and Housing Corp. v. Iness (2004), 2004 CanLII 15104 (ON CA), 70 O.R. (3d) 148 (C.A.).

43Recent case law confirms that the doctrine applies regardless of whether Parliament’s jurisdiction over the enterprise comes from a specific “class” listed in section 91, such as the federal power over criminal law, or from its POGG power, so long as the undertaking is properly subject to federal regulation. However, the decision of the Supreme Court in Western Bank suggests that the principle’s “natural area of operation is in relation to those heads of legislative authority that confer on Parliament power over enumerated federal things, people, works or undertakings” (Canadian Western Bank, supra, at para. 67).

44It was acknowledged by the respondent that both recent decisions of the Supreme Court, cited in paragraph 40 above, have established a more restrictive approach to interjurisdictional immunity than has sometimes been applied in the past, requiring that the provincial legislation impair the core competence of the federal legislation for the doctrine to apply. After reviewing case law concerning the principle, the Court states that “not only should the doctrine of interjurisdictional immunity be applied with restraint…with rare exceptions it has been so applied” (emphasis in original). The Court seems particularly concerned that excessive reliance on the doctrine would create uncertainty as it requires:

…the attribution to every legislative head of power of a “core” of indeterminate scope – difficult to define, except over time by means of judicial interpretations triggered serendipitously on a case-by-case basis…While it is true that the enumerations of ss.91 and 92 contain a number of powers that are precise and not really open to discussion, other powers are far less precise, such as those relating to the criminal law…” (Canadian Western Bank, supra, at para. 43)

45Citing these passages from the decision in Canadian Western Bank, the judge in Zoldy concluded that the principle of interjurisdictional immunity should not be engaged to resolve the interplay between the federal regulation of blood donor selection and provincial human rights legislation, noting that there is concurrent jurisdiction in the health area, and that the doctrine should only be used in a “very constrained fashion”. Given that both federal and provincial authority in the present case, as in Zoldy, derives from the broader classes of subject set out in the Constitution Act – the POGG power, criminal law power, and provincial jurisdiction over property and civil rights – it does seem that to rely upon the doctrine in this case would likely run afoul of the Supreme Court’s direction as to when it should be utilized. This is an important distinction between this case and the Canadian Mortgage and Housing Corp. decision relied upon by the respondent.

46Perhaps because of this apparent narrowing of the application of interjurisdictional immunity to resolve possible conflicts between federal and provincial regulation, the judge in Zoldy looked to the doctrine of paramountcy to resolve the issue before him and find that the provincial human rights commission should not take jurisdiction. This doctrine was also advanced by both the respondent and intervenor in the present case.

47The doctrine of paramountcy applies when there is an operational incompatibility between federal and provincial laws, giving rise to the impossibility of compliance with both, or where the provincial enactment frustrates the purpose of the federal law – in that event, the provincial law will not apply.

48The first aspect of the paramountcy doctrine – operational incompatibility giving rise to the impossibility of compliance – is the most straightforward to assess, and has been defined by the Supreme Court as involving:

...actual conflict in operation as where one enactment says “yes” and the other says “no”; “the same citizens are being told to do inconsistent things”; compliance with one is defiance of the other.

Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161, cited in Canadian Western Bank, supra, at para. 71

49In the present case it cannot be said that compliance with both the federal regulation of stem cell donations and provincial human rights legislation is inherently impossible. CBS must comply with the FDA and the regulations made under it, and may not change the donor selection criteria it has adopted for stem cell donor screening and selection without the consent of Health Canada. However, there is nothing inherent to provincial human rights legislation which prevents it from doing so without breaching the Code – at most the provincial prohibition on discrimination (on the basis of disability in the present case), subject to the defence of accommodation to the point of undue hardship, creates a possible conflict between the criteria as established and human rights requirements.

50However, the Court also acknowledges that there are cases where “imposing an obligation to comply with provincial legislation would in effect frustrate the purpose of a federal law even though it did not entail a direct violation of the federal law’s provisions” (Canadian Western Bank, supra, at para. 73). To assess incompatibility in this sense the intent of federal regulation must be taken into account.

51In the present case, an important aspect of the federal regulation of stem cell donations, as with the blood system, is to ensure that the safety of the system and thus the heath of the public is protected on a national basis. The OneMatch system has been established on a national basis (without the direct participation of Quebec, which accesses the system through its own donor program). It also intersects with international donor programs, so that Canadians can find a match and then access (or contribute) stem cells around the world. In order for stem cell transplants to be arranged across Canada, or internationally, both national and international standards must be maintained consistently. This obviously has great public policy benefits, as it increases the possibility of matches while reassuring Canadians that their health will be protected no matter the source of the donation.

52Should provincial human rights legislation be applied to the federally-regulated donor selection criteria, there is a very real possibility that these standards would be compromised, undermining the national and international nature of the program. As the judge in Zoldy points out, with respect to the national blood system, a finding of discrimination by a provincial human rights body, concerning the adoption by CBS of donor selection criteria, would result in numerous problems. These might include, as the trial judge outlined: Health Canada refusing to comply with such a ruling, as a provincial body would have no jurisdiction over it; CBS being unable to comply with the ruling, should Health Canada refuse to consent to a change in the criteria; the functioning of CBS being frustrated by these problems; and, perhaps most importantly, the possibility of inconsistent standards in different provincial jurisdictions, arising from multiple and perhaps incompatible rulings (Zoldy, supra, at para. 56). The judge in Zoldy concluded as a result that: “to allow the MHRC to proceed in this case would frustrate the federal purpose in controlling blood safety, and I thus find that the principle of paramountcy is engaged” (at para. 56).

53I am satisfied that the hearing of this Application, which challenges the federally- regulated selection criteria for donor assessment, by a provincial human rights tribunal, would similarly frustrate a central federal purpose: the provision of a safe and secure national system for stem cell transplants. As such, the doctrine of paramountcy applies to make the Code inapplicable to the process of donor screening and selection carried out by CBS through the OneMatch program.

CONCLUSION

54The jurisdiction of the Tribunal arises from the Code. Having found that the Code does not apply to the activity which is complained of in this application – the screening and selection of donors for stem cell transplants by the respondent CBS – I must conclude that the Tribunal has no jurisdiction to hear the Application.

55The Application is dismissed.