Court File and Parties

CITATION: General Manager, OHIP v. K.S., 2024 ONSC 130

DIVISIONAL COURT FILE NO.: 559/23

DATE: 20240105

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: The General manager. the ontario health insurance plan, Appellant

AND:

K.S., Respondent

BEFORE: Leiper J.

COUNSEL: S. Zachary Green and Emily Graham, for the Appellant David P. Jacobs and Steven G. Bosnick, for the Health Services Appeal and Review Board John McIntyre, for the Respondent

HEARD: In Writing

Endorsement

[1] Egale Canada (“Egale”), brought an unopposed motion, in writing, for an order granting it leave to intervene as a friend of the Court in this appeal by the General Manager of the Ontario Health Insurance Plan from a decision of the Health Services Appeal and Review Board.

[2] On December 2, 2023, I granted the motion to intervene. These are my reasons for doing so.

[3] The decision under appeal found that the respondent’s requested surgery, vaginoplasty without penectomy, was an insured service under the benefits schedule which applies to medical insurance in Ontario (the “Schedule of Benefits”). The respondent, K.S. is a nonbinary person who seeks this surgery.

[4] The issue on appeal concerns the interpretation of “vaginoplasty” in the Schedule of Benefits. In the affidavit filed in support of the motion to intervene, Helen Kennedy, the Executive Director for Egale describes the issue on the appeal as one that concerns a funding decision for gender-affirming care, an area of medical service sought by members of the trans and binary communities.

[5] Egale is a non-profit organization that advances equality and justice for 2SLGBTQI people across Canada since its establishment in 1986. In that capacity, and as set out in detail at paragraphs 8-17 of Ms. Kennedy’s affidavit, Egale has been granted intervener status in related proceedings, made policy submissions at the federal, provincial, territorial and municipal levels of government, and has provided expert evidence in matters involving issues of particular interest to these communities, including access to gender-affirming care.

[6] Egale anticipates making three submissions in this appeal:

(a) There has been a long history of prejudice and discrimination against trans and nonbinary people in Canada, which have been recognized as disadvantaged groups in the country. Egale will make submissions in support of its position that these disadvantages are manifested by barriers that are experienced by trans and nonbinary people in accessing healthcare, including receiving medically necessary gender-affirming care that connected to better mental health outcomes and the reduction in rates of suicide.

(b) HSARB interpreted the Schedule of Benefits under Regulation 552 of the Health Insurance Act according to the normal principles of statutory interpretation, and in particular, it was appropriate for HSARB to inform its interpretation of the Appendix D to the Schedule of Benefits (entitled “Sex-Reassignment Surgery”) by reference to the World Professional Association for Transgender Health (“WPATH”) Standards of Care, which publishes Standards of Care for the Health of Transgender and Gender Diverse People and recognizes that gender diverse presentations may lead to individually customized surgical requests.

(c) Any ambiguity in the legislation require that the interpretive analysis be conducted in a manner aligned with human rights legislation and Charter values.

[7] Egale submits that it is uniquely positioned to make useful and distinct submissions on the issues raised by the appeal. Egale’s involvement and its submissions would not expand or create new issues on the appeal but would inform the Court on the distinct challenges that trans and nonbinary people face in accessing appropriate gender-affirming care.

[8] Rule 13.02 of the Rules of Civil Procedure empowers a judge to grant leave to an intervener “as a friend of the court for the purpose of rendering assistance to the court by way of argument.” The court should consider the nature of the case, the issues involved, whether the intervening party will make a useful contribution to the resolution of the dispute and whether the intervention will cause any injustice or undue delay: Peel (Regional Municipality) v. Greater Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.).

[9] I am satisfied that Egale has met the test to intervene as a friend of the court. It has experience and expertise on the systemic and historical disadvantages affecting access to gender-affirming care by trans and onbinary individuals in Canada. Its history of servening as an intervener is an indication that Egale has experience with the role of intervener and its function to assist the court in understanding the implications of its decision. Egale is prepared to serve and file its material in accordance with the timeline fixed by the court, thus avoiding any unnecessary delay. No party objects to the order granting leave, which indicates the parties do not believe that Egale’s intervention will cause injustice.

[10] Accordingly, I make the following order:

[11] The motion of Egale for leave to intervene as a friend of the Court is granted on the following terms:

(a) Egale may file a factum not exceeding 20 pages on or before the date set by the Court;

(b) Egale may present oral argument not exceeding 30 minutes at the hearing of this Appeal;

(c) Egale shall coordinate with the parties and make best efforts to avoid duplication of submissions;

(d) Egale shall not raise new issues or adduce new evidence; and

(e) There shall be no costs awarded for or against Egale in respect of this motion for leave to intervene and the intervention.

_______________________________ Leiper J.

Released: January 5, 2024