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Statutory Interpretation - Charter. Ontario (Health Insurance Plan) v. K.S.
In Ontario (Health Insurance Plan) v. K.S. (Div Court, 2024) the Divisional Court dismissed an OHIP appeal under Health Insurance Act [s.24(1,4)], where the primary issue was that a "vaginoplasty without penectomy" was "not a listed procedure in the Schedule of Benefits" "and is, therefore, not an insured service."
Here the court sets out basic principles of statutory interpretation, here expressly invoking Charter values:[20] The basic rule of statutory interpretation is that the words of the legislation must be read in context and in their grammatical and ordinary sense. The words of the legislation must also be interpreted in a manner that is harmonious with the scheme of the Act and regulations, the object of the Act and regulations, and the intention of the Legislature: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 1, citing E. A. Driedger, The Construction of Statutes (1974), at p. 67. To find an interpretation that is harmonious with the legislative scheme, the court must conduct a “textual, contextual and purposive analysis”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. When the provision in question is precise and unequivocal, courts should give effect to the ordinary meaning of words used. If, however, the words of the provision can support more than one meaning, the court can look to the object, spirit and purpose of the provision as well: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at paras. 10 and 47. Finally, if the legislative provision in question is open to different but equally plausible interpretations, the Court should prefer the interpretation that is consistent with Charter values: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 62.
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[25] In my view, the Board was correct to find that vaginoplasty without penectomy is “specifically listed” in the schedule of benefits for three reasons. First, the Board’s interpretation is consistent with the grammatical and ordinary meaning of the relevant provisions. Second, the Board’s interpretation is consistent with the Legislature’s intention. And third, if there is any ambiguity in the language of the provision, the Board’s interpretation is consistent with Charter values.
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c. The Board’s interpretation is consistent with Charter values
[42] Given my conclusion that the Board’s interpretation is correct based on a plain reading of the Schedule of Benefits, I do not need to address the Charter arguments made by K.S. and supported by the intervener. However, if there was an ambiguity in the language of Part B of paragraph 17 of Appendix D to the Schedule of Benefits, the Board’s interpretation is also consistent with Charter values of equality and security of the person.
[43] The Charter-protected right to security of the person safeguards individual dignity and autonomy. Our law has long protected a patient’s freedom to make decisions about their healthcare and bodily integrity: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 64-67. Section 15 of the Charter guarantees every individual the right to equal treatment before and under the law, and the right not to be discriminated against based on enumerated and analogous grounds.
[44] The Supreme Court of Canada has recognized that the history of transgender and other gender non-conforming people in Canada has been marked by discrimination and disadvantage. The Supreme Court noted that transgender people occupy a unique position of disadvantage in our society, particularly in relation to housing, employment and healthcare: Hansmand v. Neufeld, 2023 SCC 14, at paras. 84-86.
[45] I find that interpreting Part B of paragraph 17 of Appendix D to the Schedule of Benefits in a way that requires transgender or non-binary people assigned male at birth to remove their penis to receive state funding for a vaginoplasty would be inconsistent with the values of equality and security of the person. Such an interpretation would force transgender, non-binary people like K.S. to choose between having a surgery (penectomy) they do not want and which does not align with their gender expression to get state funding, on the one hand, and not having gender affirming surgery at all, on the other. Such a choice would reinforce their disadvantaged position and would not promote their dignity and autonomy.
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