Hamilton v. BC Medical Services Plan, 2024 BCHRT 309
Date Issued: October 30, 2024
File: CS-004930
Indexed as: Hamilton v. BC Medical Services Plan, 2024 BCHRT 309
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Eaton Hamilton
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia
as represented by the Ministry of Health (Medical Services Plan)
RESPONDENT
REASONS FOR DECISION
APPLICATION TO ADD RESPONDENTS
Section 22 and Rule 25
Tribunal Member: Beverly Froese
Legal Advocate for the Complainant: Tanya Lovrich
Counsel for the Respondent: Julia Roe
Counsel for the Proposed Respondents Megan MacNeil
I INTRODUCTION
[1] In September 2021, the Complainant filed a complaint against His Majesty the King in right of the Province of British Columbia as represented by the Ministry of Health (Medical Services Plan) alleging discrimination regarding a service based on gender identity or expression contrary to s. 8 of the Human Rights Code. The Complainant is non-binary and alleges they were discriminated against when their BC Vaccine Card was issued in their deadname, and they were effectively barred from using any services that required one.
[2] In March 2023, the Complainant amended their complaint to include allegations that a second BC Vaccine Card was issued in their deadname, and they were repeatedly subject to incidents of transphobia, misgendering, and improper pronoun use when they accessed healthcare services. The Complainant also amended their complaint to allege that the manner in which results are given for the estimated glomerular filtration rate [ GFR ] blood test is discriminatory because a person must identify as either male or female and there is no option to identify one’s gender as “X”. The Tribunal accepted the March 2023 amendment at the time it was filed.
[3] After the Ministry filed its response to the amended complaint, the Complainant applied to add further details to their existing complaint and to add the Vancouver Island Health Authority [ VIHA ] and the Provincial Health Services Authority, Provincial Laboratory Medicine Services [ PHSA/PLMS ] [together, the Proposed Respondents ] as respondents.
[4] The Proposed Respondents oppose the application to add them as respondents. The Ministry takes no position on the application to amend the complaint and consents to the application to add the Proposed Respondents.
[5] For the following reasons, the Complainant’s application is granted.
[6] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact on the merits of the complaint.
II DECISION
[7] Under Rule 24(1) of the Tribunal’s Rules of Practice and Procedure , a complainant may add details to allegations made in their complaint at any time. Therefore, any details in the application relating to the existing allegations against the Ministry are accepted.
[8] Under Rule 25(2), a complainant must apply to add a respondent to their complaint. The allegations against the proposed respondent must contain facts that, if proven, could establish a breach of the Code: Rule 25(2)(b). In other words, the Complainant must allege facts in their complaints against the Proposed Respondents that, if proven, could establish that they experienced an adverse impact regarding a service, and their gender identity or expression was a factor in that adverse impact: Mo ore v. BC (Education), 2012 SCC 61 at para. 33. The threshold is low. The Tribunal assumes the alleged facts can be proven and does not take into consideration alternative explanations or defences put forward by the proposed respondent: Buchanan v. Providence Health Care and others , 2023 BCHRT 50 at paras. 20-22.
[9] If the application to add a respondent is made after the one-year time limit to make a complaint, the application must state “why it is in the public interest to add the proposed respondent to the complaint and why no substantial prejudice will result to any person because of the delay”: Rule 25(2)(c).
[10] Last, the application must also state why adding the proposed respondent would further the just and timely resolution of the complaint: Rule 25(2)(a).
A. Do the complaints against VIHA and PHSA/PLMS contain allegations that, if proven, could establish a breach of the Code ?
1. Complaint against VIHA
[11] The Complainant describes themselves as a “high-risk medical service user” who has frequent contact with medical professionals. The Complainant alleges that since October 2018, they have experienced harm from incidents of transphobia and persistent misgendering, deadnaming, and incorrect pronoun use in their in-person contact with healthcare professionals and in their medical records. The Complainant alleges that these incidents occurred even though the healthcare professionals were aware of their medical history and continued even after they legally changed their name in May 2021.
[12] The Complainant makes the following allegations of discrimination against VIHA based on their gender identity or expression:
a. Before going into the operating room for bilateral mastectomy/top surgery on or around October 18, 2018, the Complainant heard three hospital employees complain about having the bad luck to draw the surgery and agree they should not have to work on cases like the Complainant’s. The Complainant alleges that during their conversation, these employees referred to them as “it”. The Complainant says this incident was deeply hurtful, degrading, humiliating, upsetting, and terrifying. They describe what happened as “sanctuary trauma”, meaning trauma a person experiences when seeking help from an entity and instead has an experience of trauma while receiving that help;
b. Medical records related to the Complainant’s October 2018 surgery repeatedly misgendered them and used incorrect pronouns;
c. The Complainant was refused bloodwork and an abdominal CT scan in October 2021 because the lab did not have their legal name, only part of their deadname;
d. During an anesthesiology consultation in June 2022, hospital staff misgendered the Complainant and used incorrect pronouns in the consultation report;
e. When the Complainant attended for an x-ray in August 2023, a lab technician told them she had to wait for the Complainant’s name to appear on her screen even though the Complainant gave the technician their name; and
f. The lab technician asked the Complainant if they were wearing a bra even though the x-ray was on the Complainant’s hip, the Complainant does not have breasts, and their gender was indicated on the lab requisition.
[13] After reviewing all the information related to the complaint, I am satisfied that the Complainant has set out in sufficient detail allegations that describe incidents when they experienced an adverse impact related to accessing healthcare services in which their gender identity or expression was a factor. Although the Complainant has not identified who made negative comments, misgendered them, or used their deadname and incorrect pronouns, in my view the allegations are sufficiently particularized such that it would be possible to identify those individuals through the documentary evidence.
[14] VIHA submits that the use of different pronouns in medical records the Complainant did not see during their admission cannot constitute an adverse impact. In support of that argument, VIHA cites Dawson v. Vancouver Police Board (No. 2) , 2015 BCHRT 54. In that case, the Tribunal held that the complainant had not experienced an adverse impact because they did not see a police officer’s notes that used both male and female genders until they were disclosed during the Tribunal’s process: at para. 236.
[15] In my view, the circumstances in this case are distinguishable from those in Dawson. First, the complainant in Dawson had not legally changed their name, which the Complainant did in May 2021. Further, the materials before me indicate that the Complainant accessed their medical records during the relevant period. Unlike the complainant in Dawson, the Complainant did not first become aware of any misgendering or incorrect pronoun use in their medical records through the Tribunal’s disclosure process.
[16] Assuming the allegations can be proven, and not taking into consideration any alternative explanations or defences, in my view it would be open to the Tribunal to find that the Complainant was discriminated against regarding services provided by VIHA based on their gender identity or expression. In arriving at my conclusion, I took into consideration the Tribunal’s recognition at para. 82 of Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others , 2021 BCHRT 137, that:
Like a name, pronouns are a fundamental part of a person’s identity. They are a primary way that people identify each other. Using correct pronouns communicates that we see and respect a person for who they are. Especially for trans, non-binary, or other non-cisgender people, using the correct pronouns validates and affirms they are a person equally deserving of respect and dignity. … When people use the right pronouns, they can feel safe and enjoy the moment. When people do not use the right pronouns, that safety is undermined and they are forced to repeat to the world: I exist.
2. Complaint against PHSA/PLMS
[17] The Complainant alleges they were discriminated against by PHSA/PLMS between March 2021 and January 2023 when they did not have meaningful access to their GFR test results because there is no gender “X” option in the report. The Complainant alleges that because there is nowhere to indicate a gender other than “M/F”, they are effectively barred from receiving important lab results related to their kidney function. The Complainant says it is hurtful to be forced to choose their former gender when they are non-binary.
[18] In its submission, PHSA/PLMS submits that determining sex identification requirements for the GFR test and applying sex-specific reference ranges to GFR results are clinical decisions made by healthcare practitioners exercising their professional judgment. I agree with PHSA/PLMS that it is well settled that the Tribunal’s role is not to interfere with clinical decisions made by healthcare professionals: see for example McDonald v. O’Malley and B.C. (Min. of Public Safety and Solicitor General) , 2005 BCHRT 154 at para. 33. However, it is the Tribunal’s role to ensure those decisions are not tainted by discrimination: McDonald at para. 33; X.P. obo J.R. v. The Hospital and The Correctional Centre, 2018 BCHRT 4 at para. 20.
[19] Assuming the allegations can be proven, and not taking into consideration PHSA/PLMS’s explanations and defences, in my view it would be open to the Tribunal to find that the absence of a gender “X” option in the GFR report is discrimination based on gender identity or expression.
B. Are the allegations against the Proposed Respondents timely and, if not, should they be accepted under s. 22(3) of the Code ?
[20] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can continue with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[21] Allegations are timely if they are part of a “continuing contravention”: Code, s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68 . A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23 ; School District at para. 50 . To be a continuing contravention, the alleged conduct must be “sufficiently similar in character, sufficiently frequent, or sufficiently close in time”: Dove v. GVRD and others (No. 3), 2006 BCHRT 374 [ Dove No. 3 ] at para. 18.
[22] The onus is on the Complainant to establish that allegations made outside the one-year time limit are a continuing contravention: Dove No. 3 at para. 21; Mother obo Child v. The Society , 2018 BCHRT 272 at para. 34. The assessment is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17 . A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14 ; Ms. N v. College of Registered Nurses of BC and others, 2018 BCHRT 265 at para. 19.
[23] The Complainant made this application on December 6, 2023. For the allegations to be timely, there must be at least one allegation against each of the Proposed Respondents that occurred on or after December 6, 2022 and the earlier allegations are a continuing contravention.
[24] If the allegations are late filed, then the last issue I must consider is whether to exercise my discretion to accept them under s. 22(3) of the Code. That analysis requires me to consider whether it is in the public interest to accept the allegations and no substantial prejudice to any person would result because of the delay: Code, s. 22(3), School District v. Parent obo the Child, 2018 BCCA 136 at para. 68 .
1. Complaint against VIHA
a. Are the allegations timely?
[25] The August 2023 allegation regarding the lab technician’s conduct when the Complainant went for an x-ray is timely. The only issue is whether the earlier allegations constitute a continuing contravention.
[26] The Complainant submits that the allegations dating back to October 2018 are a continuing contravention because they are “a succession of further transphobic acts of discrimination of the same or similar character, including persistent deadnaming, misgendering and incorrect pronoun use”. The Complainant submits there are no significant gaps between the allegations because in addition to the specific allegations to which they refer, there are dozens of additional incidents of misgendering, deadnaming, and incorrect pronoun use in their medical records. The Complainant further submits that gaps between allegations can be attributed to periods of time when they did not need to access healthcare.
[27] In support of their argument, the Complainant relies on Pflance v. Vancouver Island Health Authority, 2023 BCHRT 194. In that case, the Tribunal found the complainant’s allegations that he was subject to homophobic slurs and comments by co-workers on a daily basis over an 18-month period outside the one-year time limit were a continuing contravention.
[28] VIHA submits that the allegations that occurred before the one-year time limit are not a continuing contravention, but rather the continuing effects of past alleged discrimination. In support of its argument, VIHA relies on Callaghan v. University of Victoria, 2005 BCHRT 589, upheld in 2006 BCSC 1503, where the Tribunal distinguished between the two. In that case, the Tribunal determined that the impacts that the complainant alleged she experienced were not separate acts of discrimination, but continuing effects or consequences of her initial allegation that the University failed to accommodate her learning disability. The Tribunal also determined that other allegations only reiterated previous alleged discrimination: at paras. 8-9.
[29] VIHA further submits that the earlier allegations are not of the same character because they relate to four distinct incidents at four different hospitals involving different employees. It also submits that the significant and unexplained gaps between the allegations weigh against a finding of a continuing contravention. In support of its argument, VIHA cites Ms. N, where the Tribunal found there was no continuing contravention because there was a five-month gap between allegations about two different interactions between the parties that were not of the same character. VIHA also cites Saari v. Evergreen Industries , 2016 BCHRT 31 where the Tribunal described a gap of over one year as “extreme”: at para. 24. In Saari, the Tribunal found the allegations filed after the time limit were not a continuing contravention because the gaps between them and the timely allegations were 12 and 15 months, respectively.
[30] I begin with the character of the allegations. The allegations relate to either transphobic comments by healthcare professionals or misgendering, deadnaming, and using incorrect pronouns when communicating with the Complainant or in their medical records. Although the alleged incidents took place in different hospitals or labs and involve different healthcare professionals, I am not persuaded by VIHA’s argument that, in and of itself, this makes them of a different character. In my view, this case is similar to Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204, where the Tribunal found that incidents that allegedly occurred in different correctional facilities and involved different employees were of similar character because the Ministry of Public Safety and Solicitor General had control over them: at para. 19. In this case, VIHA is responsible for or has control over the hospitals and employees where the alleged events occurred.
[31] Further, this is not a case like Callaghan where the Tribunal found the allegations were continuing effects of an initial allegation of discrimination. In this case, the Complainant describes a series of separate incidents when they accessed healthcare and allegedly experienced an adverse impact connected to their gender identity or expression.
[32] I now turn to the gaps between the allegations. The gap between the timely allegation from August 2023 and the June 2022 allegation is just over 13 months. The gap between the June 2022 allegation and the October 2021 allegation is just over eight months. The gap between the October 2021 allegation and the October 2018 allegations is just less than three years.
[33] The gaps between the allegations are significant. I accept the Complainant’s explanation that part of the reason for the gaps is that they did not need to access healthcare during those periods. However, in my view the gaps between the allegations are simply too long to support a finding that they are a continuing contravention. For that reason, the allegations are late filed.
b. Should the late filed allegations be accepted?
[34] I now consider whether to accept the late filed allegations under s. 22(3). The burden is on the Complainant to persuade the Tribunal to accept them. I must consider two things: public interest and substantial prejudice.
[35] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code. These include identifying and eliminating persistent patterns of inequality and providing a remedy for persons who are discriminated against: s. 3. Relevant factors include the length of the delay in making the complaint, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 [ Mzite ] at para. 53 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152 ; Mzite at para. 55 . The inquiry is always fact and context specific.
[36] I find the Complainant has met their onus of establishing that accepting the late filed allegations is in the public interest. The Complainant is a member of a vulnerable and marginalized group. The allegations raise important issues about accessing healthcare by transgender and non-binary people, which weighs strongly in favour of the public interest.
[37] Further, the reason for the delay in making this application weighs in favour of accepting the late filed allegations. In this case, the Complainant, who was not represented by counsel at the time, filed an amendment to add allegations relating to their October 2018 surgery and incidents of misgendering and use of incorrect pronouns. The Tribunal accepted that amendment at the time it was filed. The Ministry filed its response in May 2023, which is when the Complainant learned that the Ministry’s position was that it did not provide the services at issue.
[38] The seven-month delay between becoming aware of the Ministry’s position and making this application is significant. However, my review of the file indicates that sometime after March 2023, the Complainant sought and obtained legal assistance. It indicates that in November 2023, the Complainant’s legal advocate communicated the Complainant’s intent to make this application with the Tribunal and the Ministry’s counsel. I take from that communication that at least part of the reason for the delay in making the application was because the Complainant obtained legal assistance, and their legal advocate needed time to prepare the materials. Based on the information before me, the delay is not entirely unexplained and does not outweigh the factors in favour of accepting the late filed allegations.
[39] I am also of the view it is in the public interest to accept the late filed allegations so all issues raised in the complaint may be addressed together: Flagg v. B.C. (Ministry of Health), 2014 BCHRT 45 at para. 28.
[40] I now consider whether any person will suffer substantial prejudice because of the delay.
[41] While a complainant bears the burden under s. 22(3) of the Code, a respondent is more likely to have information about substantial prejudice: Ferguson v. Ausenco Engineering Canada and another, 2015 BCHRT 28 at para. 87; Shields v. Source Interlink Canada , 2007 BCHRT 164 , para. 14 . It is not enough to just say there is prejudice. A respondent must give facts and details about what the prejudice is, and why it is substantial: Rezaei v. University of Northern British Columbia and another, 2009 BCHRT 406 , para. 80 . In some cases, the Tribunal may infer substantial prejudice from a long delay in filing a complaint: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170 at para. 31. In these cases, the delay is usually measured in years, not in months: Alford and another v. B.C. (Ministry of Social Development and Social Innovation), 2016 BCHRT 64 at para. 64.
[42] VIHA submits that accepting the late filed allegations would result in significant prejudice. However, it does not allege any facts or provide any further details to support that assertion.
[43] I am satisfied that accepting the allegations would not result in substantial prejudice to anyone. Similar to the Tribunal’s conclusion in Spalek v. Provincial Health Services Authority, 2021 BCHRT 169, although the allegations are dated, they will likely be documented, and those documents can be used to refresh the witnesses’ memories: at para. 45.
2. Complaint against PHSA/PLMS
[44] The allegation that the Complainant was discriminated against in January 2023 when they obtained their GFR results is timely. The only issues are whether the remaining allegations are a continuing contravention and, if not, should be accepted under s. 22(3) of the Code .
[45] There is no question that the allegations against PHSA/PLMS are of the same character, as they all allege the GFR test results are discriminatory because there is no option to identify one’s gender as “X”. The sole question is whether there are gaps between them that weigh against a finding that they are a continuing contravention.
[46] The Complainant does not identify specific dates between March 21, 2022 and January 13, 2023 on which they obtained their GFR test results. The only information I have before me is from the March 2023 amendment to the complaint that says the Complainant often needs bloodwork and one of the tests they require is the GFR. I take from that information that the Complainant obtained GFR test results more than once between March 2022 and January 2023.
[47] In my view, the lack of exact dates between March 2022 and January 2023 is not fatal to the Complainant’s application. I am satisfied that the broad allegation the Complainant makes is sufficient for PHSA/PLMS to understand the complaint against it and be able to respond. Further, it is reasonable to presume that PHSA/PLMS has records in its possession that will identify the exact dates on which the Complainant obtained GFR results in the relevant period of time: Bjorklund at paras. 27-28.
[48] Having found the allegations against PHSA/PLMS allege a continuing contravention, it is not necessary for me to consider whether they should be accepted under s. 22(3) of the Code.
C. Would adding the Proposed Respondents further the just and timely resolution of the complaint?
[49] In its response to the complaint, the Ministry denies liability for any acts or omissions relating to alleged transphobic comments about the Complainant, misgendering, and incorrect pronoun use. The Ministry also denies liability for any acts or omissions relating to the GFR test results.
[50] In their responses to this application, the Proposed Respondents do not appear to dispute the Ministry’s description of their various roles and responsibilities. Their responses focus on arguments about the merits of the allegations against them and their defences.
[51] Based on that, in my view it furthers the just resolution of the complaint if the Proposed Respondents are added. Given their responsibilities regarding the provisions of the services at issue, the Proposed Respondents may be the only ones in a position to respond to the allegations against them: Johnson obo A v. B.C. (Ministry of Justice) and another (No. 2) , 2017 BCHRT 18 at para. 20. Further, if the Proposed Respondents are not added and the allegations are proven, the Complainant might be left with an “impaired legal remedy”: Buchanan at paras. 51 and 54.
[52] I also find that adding the Proposed Respondents to the complaint does not negatively affect the timely resolution of the complaint. The complaint is in the relatively early stages of the Tribunal’s process and “no major steps have been taken”: Buchanan at para. 55.
III CONCLUSION
[53] For the reasons set out above:
a. any additional details in the application about existing allegations against the Ministry are accepted and the Ministry will have an opportunity to file an amended response; and
b. the Complainant’s application to add the Proposed Respondents is granted.
Beverly Froese
Tribunal Member