HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
M.C.M. by his Litigation Guardian P.C.
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long Term Care
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: P.C v. Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long Term Care
WRITTEN SUBMISSIONS
M.C.M. by his Litigation Guardian P.C., Applicant
P.C., Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long Term Care, Respondent
Matthew Horner, Counsel
1This Application alleges discrimination with respect to services because of citizenship, gender identity, family and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). M.C.M. has been denied participation in the Ontario Health Insurance Plan (“OHIP”) since March 20, 2015 of this year.
2This Interim Decision addresses the Request for Interim Remedy to have M.C.M. and his mother P.M. (who is not a party to the Application) immediately enrolled in OHIP. The respondent opposes this request for Interim Remedy. I note also that there is currently a Request for a summary hearing that has been filed by the respondent because it is of the view that the Application does not have a reasonable prospect of success. This Interim Decision does not address this Request for summary hearing.
Decision
3The conditions for ordering an interim remedy are set out in Rule 23.2 of the Tribunal’s Rules of Procedure:
The Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
4Normally, the Tribunal’s power to order a respondent to do, or refrain from doing something, is contingent upon a finding that it has violated the Code. Interim remedies are extraordinary in that they constitute an order to do, or refrain from doing something, in the absence of a finding that the Code has been violated. For this reason, the applicant bears a significant onus in establishing that the Tribunal should award an interim remedy: See TA v. 60 Montclair, 2009 HRTO 369 at paras. 28-29.
5In TA, at para. 23, the Tribunal stated that since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is “whether an interim remedy is necessary to ensure the Tribunal will be able to provide a full, effective and appropriate remedy should the application be decided in favour of the applicant, or is otherwise required to give effect to the remedial objects of the Code”.
6As well, the Tribunal has been more reluctant to order a proposed interim remedy that would create a new state of affairs than one which would preserve an existing state of affairs. Creating a new state of affairs is a more extraordinary and serious remedy than maintaining what exists. See Williams v. Iroquois Falls (Town), 2010 HRTO 2350 at para. 8.
7I have considered the submissions in this matter and the declarations filed by the parties. In this case, I am of the view that it is not appropriate to grant the Interim Remedy sought by the applicant.
8I find in this case that the onus on the applicant is significant because he is seeking that the Tribunal suspend the operation of the Health Insurance Act, and its Regulations prior to a finding of discrimination under the Code. This constitutes an extraordinary remedy. Further, there are some issues that will have to be determined by the Tribunal with respect to the merits of the Application. In particular, s. 16 of the Code explicitly states that a right under section 1 of the Code with respect to citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authored by law.
9The applicant acknowledges that he has purchased insurance benefits for his son though he is not sure what is excluded in the fine print of this insurance plan. M.C.M. is currently not disentitled from obtaining health care. The issue is whether he is entitled to receive this health care at no cost pursuant to OHIP. In these circumstances, I am not satisfied that anxiety and stress over being denied OHIP coverage is sufficient harm to grant the extraordinary remedy sought.
10Having considered the matter I do not find that it is appropriate to award the Interim Remedy and the Request is denied.
11I am not seized.
Dated at Toronto, this 21th day of August, 2015.
Geneviève Debané
Vice-chair