Ilha v. Ontario (Health and Long-Term Care), 2016 HRTO 1411

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ana Claudia Ilha Applicant

-and-

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

A N D B E T W E E N:

Amir Attaran Applicant

-and-

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

DECISION

Adjudicator: Yola Grant Date: November 1, 2016 Citation: 2016 HRTO 1411 Indexed as: Ilha v. Ontario (Health and Long-Term Care)

APPEARANCES

Ana Claudia Ilha and Amir Attaran, Applicants Amir Attaran, Self-represented

Ministry of Health and Long-Term Care, Respondent S. Zachary Green, Counsel

Introduction

1These Applications, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), allege discrimination with respect to services because of disability and sex relating to the refusal to provide funding for in vitro fertilization (“IVF”) in the applicants’ particular circumstances. The respondent Ministry denies the allegations of discrimination.

2The Applications were filed in August 2009 and alleged that the government policy in force at that time did not provide for funding for IVF in their particular circumstances (blocked fallopian tubes) and was discriminatory as it created an arbitrary distinction among persons who were reproductively disabled based on the cause of the disability.

3In particular, the impugned government policy relating to the funding for (or exclusion from) IVF was contained in paragraphs 23 of subsection 24(1) of O. Reg. 552 under the Health Insurance Act, R.S.O. 1990, c. H.6. This provision was part of a larger scheme that provided public funding to Ontario residents with a valid Ontario Health Insurance Plan (“OHIP”) card for the treatment for certain medical conditions.

4By Interim Decision, 2010 HRTO 2402, the Tribunal consolidated these two Applications with two other separate Applications for the purpose of treating the four Applications as a Lead Case. All other Applications that raised a similar issue regarding funding for IVF have since been resolved. Only the two instant Applications remain in the Tribunal’s process.

5Between 2010 and 2014 there have been numerous Case Assessment Directions and seven (7) Interim Decisions concerning document disclosure and preparing these Applications for a hearing.

6In May 2014, the Tribunal scheduled 10 consecutive days of hearing to be held on November 3-7 and 24-28, 2014. These dates were cancelled at the joint request of the parties and the Tribunal’s process was put in abeyance until July 31, 2015, as part of a settlement reached by the parties. The parties were both in agreement that a hearing in November 2014 would have been a distraction from the work that could be done by the respondent Ministry to develop a new policy to govern the delivery of funded IVF services.

7The applicants’ claim for monetary compensation was settled on August 1, 2014. There was, however, no “full and final settlement” statement and the settlement agreement included the following assurance regarding the applicants’ standing to pursue the Application:

The applicants agree not to pursue any monetary compensation, from the Tribunal or in any other proceedings, in relation to the matters alleged in the applications. For greater certainty, this term of the agreement does not affect the applicants’ standing to maintain the applications before the Tribunal or to seek remedies from the Tribunal other than monetary compensation. [Emphasis added]

8The settlement also provided an opportunity for the applicant Attaran, a person knowledgeable in health law policy, to participate with another named expert in making a presentation to the co-chairs of an advisory physician/provider panel. The respondent Ministry established an expert advisory process to give advice on clinical parameters for publicly-funded infertility service delivery. There was an expectation that at the end of that process, the respondent Ministry would advance a new process that would be responsive to the allegations of discrimination that were levelled against the existing IVF funding approach within the OHIP plan.

9The applicant Attaran participated in the advisory process as agreed to in the Minutes of Settlement and was thanked by letter directly by the Minister.

10The impugned provision cited above that related to the (exclusion from) funding was repealed on December 21, 2015, by way of O. Reg. 436/15.

11In response to the respondent Ministry’s motion to dismiss these Applications filed on January 29, 2016, the Tribunal directed that a preliminary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that the issue raised is now moot as there is no longer a “live controversy” between the parties. The motion to dismiss was argued on August 2, 2016.

RESPONDENT SUBMISSIONS ON MOOTNESS

12O. Reg. 436/15 removed IVF funding from OHIP and introduced a new program (the Fertility Program) to provide IVF and other reproductive assistance treatments (e.g. artificial insemination and fertility preservation) to Ontario residents with a valid OHIP card.

13The new Fertility Program is distinguishable from the earlier version in a few important features: it is funded outside of OHIP; it provides expanded coverage for fertility services in circumstances where there was no medical cause of infertility (e.g. same-sex families, single persons) but also deemed some women ineligible based on age (must be under age 43); and, the number of procedures is capped at 5,000 annually across the province.

14The respondent asserted that as the impugned provision of O. Reg. 552 is no longer in effect, “the substratum of the litigation had disappeared” and there is no longer a live issue remaining between the parties. Furthermore, according to the respondent Ministry, “the only conceivable remedy remaining had been resolved 17 months before Reg. 436/15” was passed. (i.e. monetary compensation for a breach of the Code.)

15The respondent in its written submissions (paragraph 11) conceded that with respect to the new Fertility Program “in order to be eligible for IVF under the Program, patients receiving an embryo had to be under the age of 43, recognizing that the likelihood of a successful pregnancy declines with age.”

16Finally, the respondent asserted that the applicants are not adversely affected by the new program and thus there is no live controversy remaining between the parties even if the applicants take issue with the scope of the new Regulation. This assertion regarding the non-impact of the new Fertility Program on the applicants is strongly disputed.

17The respondent did not cross-examine Dr. Art Leader or take issue with his sworn affidavit in support of the applicants’ position that the new Fertility Program continues to exclude them on the basis of age.

APPLICANTS’ SUBMISSIONS ON MOOTNESS

18The applicant Attaran submitted that he and his spouse Ilha are still keenly interested in growing their family, notwithstanding the birth of their two children since filing these Applications in 2009. The applicants asserted that the new Fertility Program now expressly excludes the applicant Ilha who is the prospective embryo transfer recipient, solely because of her age and having no regard for her history of two live births. They asserted that they continue to be adversely affected by the new program, albeit on different grounds under the Code (age and heterosexual status) than was originally asserted in the 2009 Application.

19In support of their position that they continue to be excluded by the new Fertility Program, the applicants tendered an affidavit from an expert in fertility treatment and service delivery, Dr. Art Leader, who had served as a member of the respondent Ministry’s recent expert advisory panel (and had previously served on two other similar panels convened by the government). His evidence in part is as follows (paragraph 17, Affidavit sworn March 11, 2016):

To encapsulate: Under MOHLTC’s old OHIP-based system, Dr. Ilha and Prof. Attaran were not eligible to receive IVF services because her infertility disability was not caused by bilateral blockage of the fallopian tubes. Under MOHLTC’s new fertility program, they are not eligible to receive IVF services because of the new considerations of age, sexual orientation and marital status just described. The reasons have changed, but their ineligibility relative to other IVF-seeking patients remains.

20The applicants further asserted that the settlement of monetary issues between the parties in August 2014 related to discrimination that they had experienced in the past. That settlement did not preclude them from pursuing additional remedies in connection with that past discrimination, for example, “a systemic remedy of making IVF treatment available to all on non-discriminatory terms” that may involve an order from this Tribunal to change the criteria for eligibility to the new Fertility Program to relieve against discrimination against the applicants and others.

21In oral submissions, the applicants elaborated further on the defect of the new Fertility Program as the “problem of segregation of IVF patients outside of OHIP” after the repeal of the impugned Regulation. According to the applicants, “segregating conveys the message that they are undeserving and that’s the systemic discrimination we are concerned about.” The applicants also asserted that if permitted to amend their Applications, they are ready to proceed to a hearing to address the new Fertility Program and its direct impact on them as heterosexual spouses and as an embryo transfer recipient over age 43.

22Finally, the applicants describe themselves as being well placed to litigate the “serious social issues at stake” involving the provision of publicly-funded fertility services. They submit that they are “middle-class, well-educated professionals and could afford to start their family with IVF when the Respondent turned them away.” They now seek a remedy “not just for their own sake, but because they have lived through the turmoil and stigma of infertility, and are morally committed to helping others through it.”

ISSUES TO BE DETERMINED

23The question of whether there is a live controversy in these Applications is dependent on the timeframes before and after the repeal of the impugned regulation. The fact that there may be “live controversy” between the parties today is not determinative of whether the original issue pleaded in 2009 has survived the repeal of the impugned legislation. To help with the analysis, the following four issues have been identified.

1. Is there a live controversy or issue remaining between the parties after the implementation of the new Fertility Program in 2015?
2. If there is a live controversy or issue relating to the new Fertility Program, can the applicants proceed to a hearing by amending their 2009 Applications to reflect the new facts and ground(s)?
3. Is there a live controversy or issue remaining between the parties that was pleaded in the 2009 Applications after the repeal of the impugned section of O. Reg. 552 under the Health Insurance Act?
4. If there is no live issue remaining between the parties in the pleadings of the 2009 Applications, is this nonetheless an appropriate case for the Tribunal to exercise its discretion to hear these Applications?

DECISION & ANALYSIS

24The well-known test for mootness was articulated by the Supreme Court of Canada in Borowski v. Canada, 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342. The parties agree that the Tribunal should apply the mootness test articulated in Borowski.

25In Borowski, the court addressed two distinct issues: mootness and standing. In Borowski at para. 15, the doctrine of mootness was described as a two-part test (namely, there being a live controversy and the court’s discretion to hear the issue nonetheless), as follows:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy of practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court’s discretion are discussed hereinafter.

1. Is there a live controversy remaining between the parties after the implementation of a new Fertility Program?

26The Tribunal’s jurisprudence is clear that at the time of filing an application, the applicant must demonstrate that she or he has direct standing based on a specific crystallized infringement of a Code right. The respondent Ministry asserted that the applicants did not have direct standing to challenge the new IVF program as they were unaffected by it. The applicants contest the latter assertion and insisted that they still have a desire “to grow their family”.

27In very broad terms, the Applicants submit that the issue of whether their exclusion from publicly-funded IVF on a Code ground was or is discriminatory remains a live issue notwithstanding the change in regulatory scheme. According to the applicants, their continuing ineligibility for funded IVF services, albeit now under the 2015 regulation, keeps the issue alive.

28Having regard to the history of these Applications, there is no agreement on whether the applicants have a direct interest (and thus direct standing) to now pursue a remedy before this Tribunal.

29This Tribunal has consistently ruled that without a direct interest that is adversely affected, applicants do not have standing before this Tribunal to pursue a standalone public interest remedy. These Applications were brought under section 34(1) of the Code. Only the Human Rights Commission is entitled to bring an application under s. 35(1) of the Code for a public interest remedy. See R.C. v. District School Board of Niagara, 2015 HRTO 212 at para. 34, where this Tribunal held, relying on Landau v. Ontario (Attorney General), 2013 ONSC 6152 (Div. Ct.), as follows:

Whether the applicant characterizes himself as a “taxpayer” or a “citizen” or a “member of the community” is in my view of no moment. The Code permits individuals to enforce their own human rights, not to complain about matters occurring in their communities that do not involve them. In any event, the Court found in Landau, above, that being a “citizen, resident or taxpayer” does not convey private interest standing on an individual.

30In the Tribunal’s view, the applicants must demonstrate that they have a direct interest in receiving publicly-funded IVF services to obtain direct standing as parties adversely affected by the new Fertility Program. They need more than an ongoing public policy disagreement with the respondent Ministry to engage the Code.

31The Tribunal is prepared to accept the applicant Attaran’s assertion over that of the respondent Ministry regarding his ongoing desire to avail himself of publicly-funded IVF services and thus finds that there is a live issue between the parties regarding the new Fertility Program.

2. If there is a live controversy or issue relating to the new Fertility Program, can the applicants amend their 2009 Applications to reflect the new facts and ground(s)?

32The respondent’s new Fertility Program on its face appears to exclude the applicants based on Code-protected grounds. The Tribunal agrees with the applicants that the new program is subject to Code scrutiny but disagrees that there is no need for the applicants to return to “square one” to file a new Application to reflect the recent developments as well as demonstrate that they experience a direct disadvantage (and thus obtain standing).

33Assuming that the applicants can establish that they have standing to impugn the new Fertility Program, the amendments to the 2009 Applications that would be required to reflect recent developments are significant. The Tribunal accepts the respondent’s submission that the amendments are of such scope and magnitude as to constitute an entirely new application. The scope of the amendments to the 2009 Applications contemplated (but not formally requested) would not be granted in the ordinary course. There is no apparent basis to deviate from the Tribunal’s jurisprudence to permit the amendment of the 2009 Applications to reflect the current controversy.

34The Tribunal finds that the current controversy between the parties that relates to the new Fertility Program cannot proceed to a hearing by amending the pleadings of the 2009 Applications.

3. Is there a live controversy remaining between the parties (that was pleaded in the 2009 Applications) after the repeal of the impugned section of O. Reg. 552?

35It is undisputed that both the repealed Regulation and the new Fertility Program on its face excluded the applicants from access to publicly-funded IVF services. The applicants assert that they continue to be excluded from the new Fertility Program implemented in December 2015, now on the basis of age. They submit that their continued exclusion is a “live issue” and is not a theoretical issue or conjecture as they desire to “grow” their family.

36In support of its argument that there is no live controversy remaining between the parties, the respondent relied on a decision of this Tribunal in Pennington v. Peterborough (City), 2012 HRTO 1851, where an application was dismissed for mootness. In Pennington, the applicant was denied dentures but was later provided with same and the social assistance policy was amended. Pennington is distinguishable on its facts as both applicants allege that they continue to be excluded by operation of the new Regulation and program and as such, arguably, the issue remains live. The applicants do not merely seek “prospective compliance with the Code” that was viewed by the Tribunal in Pennington as a conjectural issue.

37Finally, the respondent urged the Tribunal to adopt the analysis in a recent decision where a matter proceeded to hearing to pursue a retrospective remedy and prevented the applicant from challenging the amended Regulation that had raised the cap for the number of daily treatments he could receive: Cole v. Ontario (Health and Long-Term Care), 2015 HRTO 1604. However, the decision in Cole is also distinguishable on its facts. In Cole, the applicant had an outstanding monetary claim for a three-year period when he was subject to the cap in services. By the time of the hearing, the Regulation was amended and the applicant was no longer adversely affected by it. In these Applications, the opposite situation exists: the Applicants have settled monetary matters that gave rise to the Applications in 2009 and the amended Regulation (2015) currently excludes them from funded IVF services, albeit under different Code grounds. In Cole, a retrospective remedy was sought, while in these Applications, arguably a remedy for a current harm is being sought.

38For the purpose of determining these 2009 Applications, the Tribunal must concern itself with the specific pleadings of the parties that related to a claim of discrimination based on disability because of the funding policy contained in O. Reg. 552. There has been no amendment to the pleadings subsequent to the repeal of the impugned Regulation. During oral submissions, the respondent conceded that the applicants’ standing to pursue their 2009 Applications was not impacted by the monetary settlement.

39I agree with the applicants that the Minutes of Settlement (“MOS”) that was signed in August 2014 does not on its face constitute a full and final settlement of the issues in dispute in the Applications. The applicants’ willingness to settle for monetary compensation and their agreement to adjourn the hearing of the Applications to permit the respondent Ministry an opportunity to explore alternatives to resolve the policy issues is to be commended. As the Tribunal’s processes are designed to foster efficient dispute resolution, it would be counterproductive to treat the applicants as losing their direct standing to seek a personal as well as public interest remedy because they engaged in settlement efforts.

40From the outset, the applicants have consistently maintained before this Tribunal that they were in search of a public interest remedy as well as specific and general damages related to their experience. The pursuit of a public interest remedy is consistent with the applicant Attaran’s participation in the expert advisory process convened by the respondent Ministry prior to the repeal of the impugned section of O. Reg. 552.The applicants had direct standing to pursue the 2009 Applications to a logical conclusion, including the pursuit of a public interest remedy or remedies. The Tribunal finds that this direct standing is unchanged by the agreement on monetary compensation and participation in the advisory process, a finding to which the respondent conceded in oral submissions.

41I further agree with the applicants that on a plain reading of the MOS, it was open to them to maintain their 2009 Applications and to pursue public interest remedies after they agreed on monetary compensation. This carving out and preservation of their “standing” was expressly contemplated in the language of the Minutes of Settlement signed in August 2014 that reads in part:

For greater certainty, this term of the agreement does not affect the applicants’ standing to maintain the applications before the Tribunal or to seek remedies from the Tribunal other than monetary compensation.

42This standing, however, remained at all times subject to the discretion of the Tribunal to control its own process. For greater clarity, the standing associated with the 2009 Application does not provide a guarantee that the matter will get to a full merits hearing before this Tribunal. Standing can be lost prior to a hearing of the matter. Issues can also be resolved so that there is no “live controversy” between the parties. For example, the applicants’ ability to claim rights and seek a particular remedy may have changed in the interim (e.g. partial settlement by way of compensation for damages claimed would result in estoppel).

43It is trite to state that the Tribunal must address current facts and cannot ignore or minimize the change in the regulatory scheme governing IVF funding since the filing of the Applications. As there are events that may have since overtaken the Applications and the MOS, it is for the Tribunal, not the parties, to determine there is a live issue (as distinct from standing) at the time of the hearing, particularly where the direct interests (or personal losses) of the applicants have been settled during the intervening period. In light of the regulatory change, the issue for the Tribunal now is whether it should exercise its discretion to hear these Applications to decide whether the now-repealed O. Reg. 552 violated the Code, and if so, to award a public interest remedy.

44The Tribunal finds that a repeal of the impugned regulation in 2015, after a settlement on compensatory matters between the parties, effectively extinguished the “live issue” that was pleaded in the 2009 Application. This means that a hearing into these Applications “will not have the effect of resolving some controversy which affects or may affect the rights of the parties”: Borowski, above, at para. 15.

45The Tribunal has no basis to doubt the sincerity of the applicants when they assert that they are seeking a remedy that would benefit not only them. These Applications are not, however, a Charter challenge to the impugned regulations – O. Reg. 552 or its successor O. Reg. 436/15 – and thus the Tribunal has no jurisdiction to address whether the equality rights of the applicants or other similarly situated applicants have been infringed on the basis of public interest standing alone.

46The Tribunal’s ability to award a public interest remedy (styled by the applicants as a “systemic” remedy) must be grounded in a finding of liability where an applicant with direct standing demonstrates that she experienced disadvantage based on a Code ground. The Tribunal finds that there is no point, at this juncture, to inquire into whether the applicants’ rights were infringed contrary to the Code, under the now-repealed regulations for the sole purpose of permitting the applicants to “seek remedies from the Tribunal other than monetary compensation.”

47The Tribunal finds that the public interest remedy that the applicants seek is an insufficient basis on which to proceed to a full hearing regarding a repealed regulation when the parties have effectively settled the issues between themselves. While, in theory, the applicants have direct standing to pursue their 2009 Application for a standalone public interest remedy, in the interest of judicial economy the Tribunal will not hear these Applications as there is no live controversy per se arising out of those pleadings.

Finding on Mootness

48A declaration that the repealed regulations did or did not violate the Code would have no practical effect on the rights of the parties to these Applications or to the public at large. The live controversy was extinguished in December 2015 with the repeal of the impugned regulation and the August 2014 settlement of monetary claims. Thus, the Tribunal concludes that there is no remaining “live controversy” from the circumstances that gave rise to the 2009 Applications and thus the matters are moot.

4. Discretion to hear the 2009 Applications notwithstanding mootness

49The applicants submitted to this Tribunal that it should exercise its discretion to refuse the respondent’s request to dismiss for mootness and in the interest of judicial economy, to set early dates to hear the Applications; to avoid using the Tribunal’s resources to begin a new application; or, necessitating further case management Directions and Interim Decisions. The applicants further urged upon the Tribunal that the respondent Ministry had “lured them into participating with the expectation that there would be a policy change” and that the Ministry is not acting in good faith when it now seeks to have the Application dismissed without a hearing on its merits.

50There was no evidence presented to the Tribunal to demonstrate that the Ministry acted in bad faith when it settled monetary matters with the applicants and carved out a public interest remedy to be dealt with through an expert advisory body that included the applicants’ input. It is clear that the applicants are dissatisfied with the policy change that resulted in a new Fertility Program that they allege still (a) denies them IVF funding and (b) denies other classes of Ontarians funded IVF services for a variety of reasons that the applicants allege is a Code violation.

51Notwithstanding that there is arguably a live issue between the parties now concerning the 2015 Fertility Program, this is not a proper case in which to exercise discretion to hear the 2009 Applications despite a finding of mootness. There are considerable differences between the regulatory schemes in effect then compared to now, and no larger public interest will be served in determining the original issue of whether the repealed O. Reg. 552 violated the Code.

CONCLUSION

52The fact that an interim monetary settlement was reached by the parties was not dispositive of these Applications. The parties contemplated that the applicants’ standing to continue their 2009 Applications was unchanged if the expert advisory panel process did not provide the applicants with a satisfactory non-monetary (public interest) remedy. This standing to continue the 2009 Applications is of no utility, however, once the impugned regulation was repealed in December 2015 as, even where parties have standing, the Tribunal retains control over its process and can determine whether there is a “live” issue to proceed to a hearing. The Tribunal has determined that the interests of the direct parties have already been addressed by the settlement and the public interest will not be served by holding a hearing into the 2009 Applications to determine whether the impugned regulation, repealed in 2015, violated the Code.

53The applicants’ inability to obtain publicly-funded fertility services under the 2015 Fertility Program (that replaced the impugned funding provisions under Regulation 552 under the Health Insurance Act), has given rise to new allegations of adverse effects discrimination, based on new Code grounds, and is properly the subject of a new Application to this Tribunal.

54The respondent’s request for a dismissal of the 2009 Applications on the basis of mootness is granted given the significant changes to the regulatory scheme and to the funding of IVF services in Ontario in the intervening period and also given that there are no outstanding claims for monetary compensation between the parties.

Order

55The Applications are dismissed.