HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bobbie Pearson
Applicant
-and-
Her Majesty the Queen in right of Ontario as represented by the Minister of Health and Long Term Care
Respondent
INTERIM DECISION
Adjudicator: Eli Fellman
Date: June 8, 2015
Citation: 2015 HRTO 753
Indexed as: Pearson v. Ontario (Health and Long Term Care)
WRITTEN SUBMISSIONS
Bobbie Pearson, Applicant
Susan Ursel, Counsel
Her Majesty the Queen in right of Ontario, as represented by the Minister of Health and Long Term Care, Respondent
Bruce Ellis, Counsel
1The applicant filed this Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to goods, services or facilities on the basis of gender identity. The Ontario Health Insurance Plan ("OHIP") will only pay for a sex reassignment surgery after an assessment and recommendation have been made by the Gender Identity Clinic ("GIC") of the Centre for Addictions and Mental Health ("CAMH"). The applicant alleges that that the 20 month waiting period for an assessment by the GIC is discriminatory.
2The applicant made arrangements to have sex reassignment surgery performed in the United States and formally requested the respondent pay the cost of this procedure. The respondent denied the request. The applicant has appealed the respondent's denial to the Health Services Appeal and Review Board ("HSRAB"). The HSRAB appeal is scheduled to be heard on June 24, 2015.
3On March 31, 2015, the respondent filed both a Response (Form 2) and a Request for an Order During Proceedings (Form 10) requesting that the Application be deferred until HSRAB proceeding is complete and the appeal decision issued.
4The applicant opposes the deferral request.
DECISION
5Pursuant to Rule 14.1 of the Tribunal's Rules of Procedure, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
6The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application. The Tribunal will generally defer an application where the parties are engaged in other legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts and order remedies that parallel the application. The Tribunal also considers whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them: see Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280; Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10; and Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.
7I find that the HSRAB proceeding and this Application address the same issues and allegations, namely the applicant's assertion that she is being denied access to publicly funded sex reassignment surgery in a timely manner.
8Since the issues in the Application and the proceedings before the HSRAB overlap significantly, proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the proceedings before the HSRAB. The primary purpose of deferring an application is to avoid such potential inconsistency. As noted, the appeal to the HSRAB was commenced first and is scheduled to be heard shortly. Having considered all of the relevant circumstances, I find that deferring the Application is appropriate.
9The Tribunal orders the deferral of the Application pending the conclusion of the HSRAB matter.
10The parties' attention is drawn to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the proceedings before the OLRB. The Rules of Procedure are available on the Tribunal's website, http://www.sjto.gov.on.ca/hrto/.
11I am not seized.
Dated at Toronto, this 8th day of June, 2015.
"Signed by" _________________________________
Eli Fellman
Vice-chair