Kimberley May

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

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

Respondent

Adjudicator: Jennifer Scott

Date: April 12, 2012

Citation: 2012 HRTO 733

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

WRITTEN SUBMISSIONS

Kimberley May, ) Susan Ursel, Counsel Complainant )

Ontario Human Rights ) Commission Commission, ) Anthony Griffin, Counsel )

Minister of Health and ) Robert Charney, Sean Hanley Long-Term Care, ) Darren Thorne, Counsel Respondent )

INTRODUCTION

[1] This complaint concerns the delisting of sex reassignment surgery (SRS) as an insured service under the Ontario Health Insurance Plan in October 1998.

[3] As a result of the abuse of process finding, the Tribunal ruled the Hogan decision applied to these complaints. The Commission took the position in its written submissions preceding the Decision that if Hogan applied to these complaints, the complainants in this proceeding were not entitled to a remedy based on Hogan. The complainants did not take a position on this question.

[4] The Tribunal accepted the Commission’s submission with respect to the complaints of Ms. May and Ms. Rockcliffe because they had begun their transition after the delisting of SRS and as such, were not entitled to the accommodation in Hogan. The Tribunal requested the parties’ submissions as to whether Ms. Forrester was entitled to accommodation under Hogan.

[5] On January 5, 2012, Ms. May filed a Request for Reconsideration of the Tribunal’s decision, as provided for in section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Request was based on the following grounds:

(a) the Decision is inconsistent with the established jurisprudence of the Tribunal, in particular, the decision in Hogan;

(b) the Decision is factually inaccurate; and

[6] On January 6, 2012, the Tribunal was advised that the parties had reached a settlement regarding Ms. Forrester’s complaint.

DECISION

[7] The Request for Reconsideration is dismissed.

RELEVANT LEGISLATIVE PROVISIONS

[8] Sections 45.7 and 45.8 of the Code provide the Tribunal with authority to reconsider its decisions while confirming the finality of the Tribunal’s decisions:

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

45.8 Subject to section 45.6 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

[9] Further to its power to make rules, the Tribunal has issued rules governing Requests for Reconsideration as well as a Practice Direction to provide guidance on the Tribunal’s exercise of its reconsideration powers (Practice Direction #4 Reconsideration).

[10] Relevant to this Decision is Rule 102 dealing with Commission-referred complaints:

A request for reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing;

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions and orders.

[11] Practice Direction #4 states, in part:

Decisions of the Tribunal are final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

ANALYSIS

[12] Ms. May advances three arguments in support of her Request for Reconsideration. First, she argues the Decision is factually inaccurate and inconsistent with Hogan. Second, Ms. May argues there is an overriding public interest in the remedy denied to her under the Decision. Third, Ms. May argues it is not an abuse of process to challenge the finding in Hogan.

Reconsideration

[13] The Tribunal’s jurisprudence is clear that a Request for Reconsideration is not an appeal and is granted only in limited circumstances. There must be more than a disagreement with a decision or an alleged error to find that the conditions in Rule 25.5 (Rule 102 in Commission-referred cases) have been reached. As the Tribunal stated in Sigrist and Carson v. Toronto District School Board, [2008 HRTO 34](https://www.minicounsel.ca/hrto/2008/34), at paras. [56-57](https://www.minicounsel.ca/hrto/2008/34):

As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties to a case have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

Secondly, assertions of a “conflict” must be analyzed with care and have due regard to the realities and nature of decision-making. Even where there is well-established jurisprudence or procedures, each decision on apparently similar issues is made within its own factual, legislative and policy context. A finding that there is a “conflict” can only be made taking into consideration the full context of the decisions.

The Decision in Hogan

[14] In my Decision, I found Ms. May is not entitled to the accommodation in Hogan because she commenced her transition after SRS was delisted. I used the word “transition” in the sense that it was used in the Hogan decision. Under Hogan, transitioning is the commencement of treatment towards SRS by starting the Real Life Experience (RLE) and/or hormone therapy. All of the successful claimants in Hogan had taken one or both of these steps prior to the delisting. The claimant who was not successful was Mr. McDonald who commenced treatment after the delisting.

[15] The duty to accommodate arose in Hogan because the claimants had begun to transition to the opposite gender prior to the delisting in October 1998. As such, they were disproportionately impacted by the removal of a benefit they were in a process towards receiving. The central ruling in Hogan is reproduced below:

Considering all of their circumstances, the majority concludes that the 35-day grace period given by the grandparent provision in the regulation is insufficient to accommodate the needs of three Complainants. The circumstances of these three Complainants, Ms. Hogan, Ms. Stonehouse and AB, are exceptional in that they had already commenced treatment towards SRS when the decision to discontinue funding for SRS was taken. Their exceptional circumstances give rise to the “need” to accommodate them and inform the sufficiency of the accommodation. The majority concludes that six years, which is the outer limit of the processes, would have been an appropriate accommodation for those patients who had begun the Clinic’s programme. (emphasis added)

[16] Ms. May submits that her viva voce testimony before the Tribunal referenced both 1998 and 1999 as possible dates for the commencement of hormone treatment. She argues any ambiguity in her evidence should be resolved in her favour.

[17] I disagree that Ms. May’s evidence was unclear regarding the commencement of hormone therapy. Ms. May testified she began to seek out hormones in 1999. Ms. May was asked twice by Commission counsel to confirm this date and on both occasions she confirmed the year was 1999. Ms. May testified further that she was referred to CAMH in late 1999 and began her RLE in 2002/2003. From Ms. May’s own evidence she started treatment in the transitioning process after the de-listing. Put differently, there is no evidence from Ms. May that she commenced treatment in the transitioning process believing SRS would be funded.

[18] Ms. May states she began her process of transitioning, including feeling the effects of gender dysphoria and canvassing her options regarding hormone therapy and the steps she could take to effect a transition, prior to the October 1, 1998 delisting of SRS. While I agree that Ms. May took these steps, they are insufficient to meet the definition of transitioning in Hogan. Contemplating transitioning and canvassing options is insufficient to give rise to the duty to accommodate. The entire underpinning of the Hogan decision is the adverse impact on individuals of removing a benefit they were in a process towards receiving. This impact does not exist when treatment in the transitioning process is commenced after the delisting.

[19] Ms. May is in the same shoes as Mr. McDonald whose claim was denied by the Tribunal in Hogan because he commenced his treatment after SRS had been delisted. On this point, the Tribunal stated the following in Hogan at paragraph 140:

.... it cannot be said that the delisting had a disproportionate adverse impact on him. He was neither a patient of the Clinic, nor had he begun the program, and thus had not relied on the government’s arrangement with CAMH to fund his treatment, if recommended for SRS. As noted earlier, Mr. McDonald admits that he was not aware of the Clinic. According to the evidence, he began CAMH’s GID program on May 14, 2001 (emphasis added).

[20] The essence of Ms. May’s argument is that the delisting of SRS disproportionately impacted transgendered persons who were contemplating and making inquiries about the transitioning process at the time of the delisting in October 1998. Setting aside the difficulty of determining whether one is transitioning based on these criteria, the argument is, at its core, that transgendered persons were adversely impacted by the removal of SRS as an insured benefit. The Tribunal ruled on this question in Hogan and held the removal of funding for SRS did not contravene the Code.

Public Interest in the Remedy

[21] Ms. May argues there is an overriding public interest in the remedy denied to her under the Decision.

[22] In light of my finding that it would be an abuse of process to relitigate Hogan, the public interest requires consistent application of that decision. To provide SRS funding to Ms. May would be contrary to the Hogan decision, unfair to Mr. McDonald who was denied funding in similar circumstances and unfair to other individuals who may have been contemplating transitioning at the time of Hogan and were not covered by the decision. For these reasons, it is not in the public interest to provide Ms. May with a remedy that she is not entitled to under Hogan.

Challenging Hogan is not an abuse of process

[23] Ms. May submits challenging the finding in Hogan is not an abuse of process for the following reasons. She states the parties intended to appeal Hogan and only abandoned the appeal when SRS was relisted as an insured service. She states further that the parties in Hogan did not contemplate the impact of abandoning the appeal on her and that she did not participate in the decision to abandon the appeal. While I have no reason to doubt these facts, they are not relevant to my abuse of process finding.

[24] I found it is an abuse of process to relitigate the delisting of SRS in 1998 on essentially the same evidence and legal theory as put forward and rejected in Hogan because it is an attempt by the parties to use the Tribunal as an appeal or judicial review body. The basis for my finding was the way in which the case was put forward. It was not based on the fact that the complaints themselves were before me. There was no attempt by any party to argue these complaints on the basis of a different legal theory, including the impact of delisting SRS in 1998 and relisting it in 2008. Reconsideration cannot be used as an opportunity to put forward a new legal theory not advanced at the hearing.

[25] I recognize that Ms. May was not separately represented in these proceedings until the Reconsideration Request. However, at no time did she express any disagreement with how the Commission was presenting her case. When complainants decide to advance their complaints under the umbrella of the Commission, they are bound by how the Commission presents their case. In this proceeding, they are constrained by the Commission’s decision to re-litigate Hogan on the basis of essentially the same evidence and legal theory and cannot alter their position now because I have found it is an abuse of process to do so.

[26] Ms. May has not shown the Decision is in conflict with Hogan, nor has she demonstrated other factors exist that outweigh the public interest in the finality of Tribunal decisions. It is clear that Ms. May disagrees with my Decision however, Reconsideration cannot be used a mechanism to appeal a decision. Ms. May has not met the test for Reconsideration and as such, her Request must be denied.

[27] The Request for Reconsideration is dismissed.

Dated at Toronto, this 12^th^ day of April, 2012.

“signed by”

Jennifer Scott

Vice-chair

May v. Ontario (Health and Long Term Care), 2012 HRTO 733

Case Summary