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Case Name:
Flagg v. British Columbia (Ministry of Health)

IN THE MATTER OF the Human Rights Code
R.S.B.C. 1996, c. 210 (as amended)
AND IN THE MATTER OF a complaint before
the British Columbia Human Rights
Tribunal
Between
Jackson Rae Flagg, Complainant, and
Her Majesty the Queen in Right of the
Province of British Columbia as
represented by the Ministry of Health, Respondent

[2014] B.C.H.R.T.D. No. 45

2014 BCHRT 45

File No.: 11848

 British Columbia Human Rights Tribunal

Panel: Marlene Tyshynski, Member

Decision: February 24, 2014.

(29 paras.)

Appearances:
Counsel for the Complainant: Marlisa Martin.
Counsel for the Respondent: Linda Thayer.

	REASONS FOR DECISION TIMELINESS OF COMPLAINT: Section 22
I INTRODUCTION
1     On August 1, 2013, Jackson Rae Flagg filed a complaint against Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Health (the "Ministry") alleging that it discriminated against him based on his sex and/or sexual orientation in the provision of a service customarily available to the public, contrary to s. 8 of the Human Rights Code.
2     Mr. Flagg is a transgender male. He applied and went through the Ministry's process to acquire funding for gender-reassignment surgery ("GRS"). In his case, he sought female-to-male transgender/transsexual "top surgery"; that is, a bilateral mastectomy with chest contouring. His application for funding was made on May 10, 2012. It was approved April 17, 2013. Mr. Flagg's allegations span this period of time.
3     The Tribunal notified the parties that part of the complaint appeared to have been filed outside the six-month time limit, and requested submissions on its timeliness.
4     This decision addresses only the timeliness issue.
5     While I do not refer to every submission made by the parties, I have read and considered them all in reaching my decision.
II DECISION
6     I find that Mr. Flagg's complaint is a continuing contravention and, thus, is filed on a timely basis pursuant to s. 22(2) of the Code. In the alternative, I would also accept it for filing under s. 22(3).
III BACKGROUND TO THE COMPLAINT
7     In the decision, I do not make any findings of fact, except for the purpose of determining the relevant dates for assessing the timeliness of the complaint.
8     The gist of Mr. Flagg's complaint is that the Ministry, who funds chest surgery for a number of different medical conditions, treats transgender patients differently and adversely. Mr. Flagg states that the Ministry acknowledges that GRS, including top surgery, is a medically-necessary health service. Mr. Flagg provides examples of medically-necessary chest treatment for cisgender people ("cisgender" means someone whose gender identity matches their sex assigned at birth). His examples are a cisgender woman who requires a breast reduction, a cisgender woman who has a significant amount of asymmetry between her breasts, or a cisgender man who has gynecomastia (benign enlargement of breast tissue in males).
9     Following is my summary of Mr. Flagg's complaint, in which he alleges discrimination during the Ministry's GRS application process:

a. 	Mr. Flagg alleges that the Ministry discriminated him as a transgender patient because it intervenes between transgender patients and their physicians with respect to decisions regarding chest health care. He says that for cisgender patients to access chest health care, their family physician makes a direct referral to a specialist/surgeon. As a transgender patient accessing chest health care, he was required to ask his family physician to submit a referral request to the Ministry rather than make a direct referral to the appropriate specialist. On May 10, 2012 he attended his family physician to request "top surgery".

b. 	On June 28, 2012, the Ministry notified Mr. Flagg that "upon the advice of your physician, we have referred you to Dr. X, who is qualified to assess you and make a recommendation for Gender Reassessment Surgery". Mr. Flagg was asked to contact Dr. X. Mr. Flagg says that, at this time, Dr. X was the only Ministry approved assessor in the province and that all transgender patients were on her waitlist. Mr. Flagg alleges that the Ministry discriminated against him as a transgender patient when it intervened between his family physician and him, by requiring a review of his physician's recommendation for a referral to an assessor before he could be referred.

c. 	In March 2013, it came to Mr. Flagg's attention that, on or around December 2012, the Ministry had adopted the standards of care for transgender health developed by the World Professional Association for Transgender Health, and had added more gender dysphoria psychiatric assessors to its roster. Mr. Flagg sought out and booked an appointment with one of the new assessors, Dr. Y. On March 10, 2013 Mr. Flagg underwent a psychological assessment with Dr. Y. Mr. Flagg states that the Ministry required Dr. Y to complete an application form that would be considered by the GRS Committee. As a Ministry employee, Mr. Flagg is very concerned about disclosure of his personal medical history. He alleges that the Ministry discriminated against him and all transgender patients by requiring sensitive medical and personal information he disclosed to Dr. Y as a medical professional to unknown persons (the GRS Committee) and at least one public servant, the GRS advisor.

d. 	On April 17, 2013, Mr. Flagg was copied with a letter (the "Letter") that stated that the GRS Committee had reviewed Mr. Flagg's file and had authorized Medical Services Plan funding for GRS. The letter stated that the authorization was active for 24 months from the date of the Ministry's letter and that Dr. Y could contact the GRS advisor if an extension was required. Mr. Flagg says that the Letter confirms that his personal medical information was reviewed by persons unknown to him on the GRS Committee. He alleges that the Ministry discriminated against him and transgender patients compared to cispersons in requiring him to go through this process, including requiring GRS Committee approval to access a surgeon when his physician had already decided that the medical procedure was medically necessary and by having a time limit on that approval.
10     The Ministry states that the complaint is out of time as it does not constitute a continuing contravention of the Code and no reason was given for the late filing. The Ministry submits that the Tribunal should not accept Mr. Flagg's late-filed complaint.
IV TIMELINESS OF THE COMPLAINT
11     Section 22 of the Code provides:

(1) 	A complaint must be filed within 6 months of the alleged contravention.

(2) 	If a continuing contravention is alleged in a complaint, the complaint must be filed within 6 months of the last alleged instance of the contravention.

(3) 	If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that

(a) 	it is in the public interest to accept the complaint, and

(b) 	no substantial prejudice will result to any person because of the delay.
12     The complaint was filed on August 1, 2013; therefore, allegations occurring before February 1, 2013 are late-filed unless they form part of a continuing contravention under s. 22(2).
13     Allegations c and d are filed on a timely basis. The other allegations pre-date February 1, 2013.
14     In order to establish a timely continuing contravention under s. 22(2) of the Code, there must be allegations of discrimination of the same character, at least one of which must have occurred within six months of filing.
15     In Dove v. GVRD and others (No. 2), 2006 BCHRT 197, the Tribunal stated:

	The principles to be applied in determining if a continuing contravention is alleged are clear. As stated in Webber v. Alcan Incorporated, 2004 BCHRT 52:

	In Lynch v. B.C. Human Rights Commission, 2000 BCSC 1419, the Court adopted the following statement from the Manitoba Court of Appeal in Re the Queen in Right of Manitoba and Manitoba Human Rights Commission et al (1983), 2 D.L.R. (4th) 759:

	To be a "continuing contravention", there must be present acts of discrimination which could be considered as separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects or consequences. (at p. 764)

	The Manitoba decision was referred to in the recent decision of the Newfoundland and Labrador Court of Appeal in Newfoundland and Labrador (Human Rights Commission) v. Newfoundland Liquor Corp., [2004] N.J. No. 22, in which the Court said:

	In applying this reasoning, consideration must be given to the development of human rights law during the past 20 years, and in particular, the emphasis on a liberal and purposive interpretation of the legislation. (at para. 59)

	The concept of a "continuing contravention" must therefore be interpreted in a manner consistent with the liberal and purposive interpretation which must be applied to human rights legislation in order to ensure that "the rights enunciated are given their full recognition and effect": C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114 at para. 24. (at paras. 36-38)

	At the same time, the concept of a continuing contravention must be applied in a manner which is fair to respondents. In giving the concept the liberal and purposive interpretation it requires, it must not be used to improperly sweep in allegations which would otherwise be far outside the Code's time limits.
16     The determination of whether there is a continuing contravention of the Code requires an exercise of discretion based on the fact pattern presented. In Dove v. GVRD and others (No. 3), 2006 BCHRT 374 at para. 17, the Tribunal addressed different types of fact patterns that could constitute a continuing contravention in a human rights context. This ranged from allegations of repeated harassment or discrimination that might be described as a poisoned work environment to situations involving an ongoing state of affairs such as wheelchair inaccessible public buildings or a discriminative policy. In Dove the Tribunal concluded by saying:

	In determining whether a continuing contravention is alleged, the Tribunal must consider these and any other relevant issues. It must due so in light of the purposes of the Code, including ensuring that individuals who claim to have suffered discrimination are given a means of redress while at the same time ensuring that respondents are treated fairly. This brief review of the kinds of factors which may be relevant suggests that the determination of whether a continuing contravention is alleged, and the length of that contravention is, as stated by our Court of Appeal in O'Hara v. British Columbia 15 (Human Rights Commission), 2003 B.C.J. No. 709, 2003 BCCA 139, a discretionary one. In the end, all one can hope to do is to draw the line in a fair, principled and reasoned way. (para. 20)
17     I summarize the essence of the parties' submissions below.
18     Mr. Flagg characterizes his complaint as a series of steps, each a condition precedent to the next, that he was required to satisfy in order to access funding for chest surgery as a transgender patient. He says cisgender patients are not subject to the same requirements. He urges me to conceptualize the process and thus the allegations as a repetition of the same character in that each allegation refers to adverse treatment of transgender patients like Mr. Flagg who seek access to chest surgery.
19     The Ministry says it has policy and procedures in place regarding GRS. It points out that Mr. Flagg became aware of this policy on May 10, 2012 when he met with his family physician. The Ministry states that this is the relevant date for determining timeliness. This allegation is a lengthy nine months out of date. It submits that all other allegations are the continuing effect of its policy not new or separate allegations. The Ministry also urges me to focus on the differences between the allegations made by Mr. Flagg in that the requirements are not the same.
20     First, I acknowledge that my task is to determine whether Mr. Flagg's complaint constitutes a continuing contravention in light of the purposes of the Code, including ensuring that individuals who claim to have suffered discrimination are given a means of redress while at the same time ensuring that respondents are treated fairly.
21     I am mindful of the purpose of the time limit is "to ensure that complainants pursue their human rights remedies with some speed and to allow respondents the comfort of performing their activities without the possibility of dated complaints:" Chartier v. School District No. 62, 2002 BCHRT 39, para. 12.
22     In my view, the application for GRS involves a process that starts with the application and ends with the GRS Committee determination. In these circumstances and on this fact pattern, where the speed Mr. Flagg's application was processed was at the behest of the Ministry, I find it reasonable for a complainant to complete the process and to then raise allegations of discrimination about the process as a whole. I prefer Mr. Flagg's characterization of the process.
23     I appreciate the Ministry's submission that Mr. Flagg was informed of its policy on May 10, 2012, and presumably could have filed a complaint about the policy at that time. However, the allegedly discriminatory impact did not occur until the policy and procedures were in fact applied to Mr. Flagg. In this regard, Mr. Flagg alleges that he was notified on June 28, 2012 of the referral to Dr. X, was placed on her waitlist, and did not receive the required assessment until March 2013 from Dr. Y. Dr. Y then forwarded an application form for consideration by the GRS Committee, and shortly thereafter the procedure was approved subject to a time limit.
24     I find that the allegations are of a similar character as they all allege differential and adverse treatment of transgender applicants for chest surgery in British Columbia. In my view, the requirements are most appropriately viewed as part of a process rather than as discrete aspects of it.
25     I have determined that the allegations are appropriately considered a timely continuing contravention under s. 22(2).
26     In the alternative, I would also accept allegations a and b for filing under s. 22(3). Under s. 22(3), the onus is on the complainant to persuade the Tribunal both that it is in the public interest to accept the complaint, and that no substantial prejudice will result to any person because of the delay in filing: Chartier, para. 12. Factors which may be relevant to the assessment of the public interest include the length of the delay, the reason for the delay, the significance of the issue raised in the complaint and fairness in all the circumstances: Cronin v. Allied Ready Mix and another, 2007 BCHRT 417, para. 9.
27     Mr. Flagg attended at his doctor's office on May 10, 2012. He alleges that Ministry intervention in the decision-making process is discriminatory, including that it resulted in delay and disclosure of medical information. Mr. Flagg received the referral to to Dr. X on June 28, 2012, and there was a delay of over eight months to obtain the required assessment. Mr. Flagg filed his complaint on August 1, 2013. In these circumstances, I accept that it was reasonable to wait until the assessment was obtained and the process was complete. The delay in obtaining the assessment, about which Mr. Flagg complains, accounts for much of the delay in filing. Mr. Flagg filed his complaint within five months of the assessment and within four months of the process completing.
28     Further, in my view, it is in the public interest to accept the late-filed portion of the complaint so that all issues raised by Mr. Flagg's complaint about whether the Ministry's policy and procedure respecting top surgery for transgender persons contravenes the Code may be addressed together. In my view, this weighs strongly in the public interest. There is no indication in the material filed that substantial prejudice will result to any person in accepting this complaint for filing.
V CONCLUSION
29     Mr. Flagg's complaint is accepted for filing under s. 22 of the Code.
Marlene Tyshynski, Tribunal Member

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