E.C. v. Ontario (Health and Long-Term Care), 2015 HRTO 1462

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.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: Laurie Letheren Date: November 2, 2015 Citation: 2015 HRTO 1462 Indexed as: E.C. v. Ontario (Health and Long-Term Care)

WRITTEN SUBMISSIONS

E.C., Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care, Respondent Bruce Ellis, Counsel

1This Application alleges discrimination with respect to services because of disability, sex, sexual orientation and gender identity contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant has filed the following Requests for Order:

1. to amend her Application to add gender expression as an additional ground of discrimination;
2. to amend the amount of monetary compensation claimed as a remedy;
3. to amend her position on the right of the Ontario Human Rights Commission to intervene in this Application;
4. to add the Lieutenant Governor of Ontario as a respondent; and
5. to seek an interim remedy.

Adding Respondent

3In her Application, the applicant named the Premier, the Ministry of the Attorney General, Ministry of Health and Long-Term Care, and the Ministry of Government Services and Consumer Affairs as respondents. In Interim Decision 2015 HRTO 917 the Tribunal made the following Order:

• The name of the applicant is anonymized as set out above;
• The Ministry of the Attorney General and the Premier are removed from the Application and the style of cause amended accordingly.

4In a further Interim Decision, 2015 HRTO 973, the Tribunal ordered the Ministry of Government Services to be removed from the Application.

5On October 14, 2015, the applicant filed a Request for Order to add Lieutenant Governor of Ontario as a respondent. The applicant submits that since filing the Application, Ontario has enacted the Affirming Sexual Orientation and Gender Identity Act, 2015” (“the Act”). She states that this Act vests the statutory definitions of the terms “gender identity” and “sexual orientation” with the Lieutenant Governor of Ontario. She submits that these terms will be important to the outcome of the Application and therefore, the Lieutenant Governor of Ontario should be a party to the Application so that she can provide prompt guidance to the Human Rights Tribunal of Ontario.

6The Act states that the “The Lieutenant Governor in Council may make regulations, (a) clarifying the meaning of “services”, “sexual orientation”, “gender identity” or “seek to change”…” The Act amended the Health Insurance Act and the Regulated Health Professions Act, 1991.

7The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at paragraph 12:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?
2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
3. Would it be fair, in all the circumstances, to add the proposed respondent?

8As was stated in Interim Decision 2015 HRTO 917 at paragraph 11 “The allegation in the Application relates to a decision made by the Ministry of Health. The Crown in Right of Ontario is in fact the respondent and is adequately represented for all purposes by the Ministry of Health.” There are no allegations made against the Lieutenant Governor that could support a finding that her office has violated the Code.

9Although it may be true that understanding the terms “services”, “sexual orientation”, “gender identity” or “seek to change” may be important for the Tribunal in determining this Application, this can be addressed by the parties through their submissions.

10I find that it would not be fair, in the circumstances of this case, to add the Lieutenant Governor as a respondent.

Request to Amend the Application

11The respondent consents to adding gender expression as a ground of discrimination to the Application. This amendment is therefore allowed.

12The respondent opposes the applicant’s Request to increase the amount of monetary compensation sought to approximately 10 million dollars. The respondent submits that this amount is excessive and too remote and that the basis for the amount bears no relation to any service provided by the respondent.

13In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; and Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

14The Tribunal generally grants requests to amend remedies up to the date of the hearing. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050.

15I find that the respondent is not prejudiced by this amendment to the Application and I therefore grant the applicant’s request. This amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue.

Interim Remedy

16The basis of this Application is the applicant’s claim that she experienced discrimination when the respondent did not approve funding for her surgery. The applicant is requesting the Tribunal to declare, as an interim remedy: that the policy that the respondent relied on in denying approval for funding violates the Code; that the applicant’s medical professional is qualified to make the required recommendation for the surgery; that the respondent must accept the recommendations for surgery made by experts other than those the respondent has designated to make such recommendations; and that the respondent immediately fund the requested surgery.

17The 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.

18Normally, the Tribunal cannot order a respondent to do, or refrain from doing, something until the Tribunal makes a finding that the respondent has violated the Code. Interim remedies are extraordinary. 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 (“TA”).

19In considering the three factors set out in Rule 23.2, the Tribunal in TA stated:

• To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious (at paras. 30-32).
• The second factor involves a balancing of the harm to the applicant against the harm to the respondent (at paras. 33-34).
• The third factor calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Code and is fair in all of the circumstances (at para. 35).
• The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole (at para. 36).

20I can accept, without determining the merits of the Application, that the applicant has presented an arguable case that is not frivolous or vexatious.

21The applicant submits that the Tribunal should grant this Interim Order to alleviate the applicant’s suffering in having to wait more years than necessary for the surgery. The applicant states that she expects she will eventually get the required approval for the surgery from the entity that the respondent stipulates must provide this approval.

22In TA, at para. 23, the Tribunal stated that although the Tribunal may consider the urgency that the applicant claims and the hardship she may suffer, this alone may not be sufficient.

[T]he focus of the inquiry 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.

23I have no reason to doubt that the applicant does continue to suffer emotionally and psychologically as she waits for surgery that her medical professionals describe as medically necessary for her. However, I do not find that this interim remedy is necessary to ensure that the Tribunal will be able to provide a full, effective and appropriate remedy should it find that the respondent has breached the applicant’s Code rights.

24As 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.

25As was stated in Vella v. City of Toronto, 2011 HRTO 1831, at paragraph 10, an important factor to consider in a request for an interim remedy is that:

the result of the interim remedy would be to grant the applicant part of the final remedy [s]he seeks, without a determination that it is warranted.

The applicant is asking the Tribunal to order that the respondent’s criteria and process for funding not be followed and to order funding for her surgery before making a determination that the respondent’s criteria and process breach the Code.

26I 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.

Ontario Human Rights Commission as Intervenor

27The applicant indicated in her Request for Order that she had initially indicated that she would not consent to the intervention of the Ontario Human Rights Commission [“Commission”] in this Application. As of the date of this Interim Decision, the Commission had not indicated whether it intends to seek to intervene in this Application. Should the Commission request to intervene, it can seek the consent of the applicant and she can determine whether she wishes to consent at the time.

ORDER

28For the reasons provided above I order as follows:

1. The applicant’s request to amend the Application to add the ground of gender expression as a ground of discrimination is granted.
2. The applicant’s request to amend the amount of monetary compensation claimed as a remedy is granted.
3. The applicant’s request to add the Lieutenant Governor of Ontario as a respondent is denied.
4. The applicant’s request for interim remedy is denied.

29I am not seized.