KW v. BC Ministry of Health (No. 2), 2025 BCHRT 113
Date Issued: May 9, 2025
File(s): CS-001382
Indexed as: KW v. BC Ministry of Health (No. 2), 2025 BCHRT 113
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:
KW
COMPLAINANT
AND:
His Majesty the King in right of the Province of British Columbia
as represented by the Ministry of Health
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Robin Dean
On her own behalf: KW
Counsel for the Respondent: Justin Mason
I INTRODUCTION
[1] On January 2, 2019, KW, a transgender woman, filed a complaint with the Tribunal alleging that the Ministry of Health [ Ministry ] discriminated against her in the area of services, on the basis of sex, contrary to s. 8 of the Human Rights Code , when it refused to consider her funding application to receive a Laparoscopic Sigmoid Colon Vaginoplasty in Thailand. The Ministry says the application was not reviewed because it was not completed by a BC specialist.
[2] In April 2021, the Ministry applied to dismiss KW’s complaint under s. 27(1)(c). The Tribunal denied the Ministry’s dismissal application in a decision dated May 10, 2024 on the basis that the Tribunal was not satisfied there was no reasonable prospect of KW proving a connection between her transgender identity and the adverse impact she says she experienced by being unable to access funding for the out-of-country surgery: KW v. BC Ministry of Health , 2024 BCHRT 144. Central to the Tribunal’s decision was KW’s argument that there was no BC specialist who could complete the application.
[3] Following the first dismissal decision, the Tribunal ordered non-party disclosure through which the Ministry obtained KW’s medical documents. The Ministry says these documents show that KW and her family doctor had consulted with a BC specialist, Dr. Krista Genoway, and Dr. Genoway advised them that appropriate and medically accepted care was available in Canada. Dr. Genoway characterized Laparoscopic Sigmoid Colon Vaginoplasty as KW’s “personal preference” because while Laparoscopic Sigmoid Colon Vaginoplasty was not available in Canada at the time, Penile Inversion Vaginoplasty was available in Montréal. The Ministry says in light of these new documents, the complaint should be dismissed under s. 27(1)(c).
[4] This dismissal application requires me to resolve the following issues:
a. whether there is no reasonable prospect of KW proving the service she sought was a service customarily available to the public; and
b. whether there is no reasonable prospect KW could prove she faced a gender-identity and/or sex-related barrier to accessing appropriate medical care in light of the evidence that KW and her family doctor consulted with Dr. Genoway, who told them the appropriate, medically-accepted care was available in Montréal.
[5] For the following reasons, I am not satisfied there is no reasonable prospect of KW proving she sought a service customarily available to the public. And I am not satisfied there is no reasonable prospect of KW proving that she faced a gender-identity and/or sex-related barrier to accessing appropriate medical care. I therefore deny the Ministry’s dismissal application. 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.
II Anonymization
[6] The Tribunal anonymized KW’s name in the first dismissal decision because the decision contained sensitive and highly personal medical information. Neither party disagreed with the anonymization. While the Tribunal said that further anonymization could be accomplished by an application under Rule 5(6), no such application was received in connection with this dismissal application. Nevertheless, I have decided on my own motion to anonymize KW’s name in this decision because it references the earlier dismissal decision. If either party disagrees with this anonymization, they may apply to have KW’s name identified in this decision.
III BACKGROUND
[7] The following background is taken from the first dismissal decision, with additions, as appropriate to the new dismissal application before me.
[8] The Ministry is responsible, through the Medical Services Commission, for giving prior written approval for “elective (non-emergency), medically necessary, out-of-country medical care”. The Medical Services Commission has published guidelines in relation to funding out of country care [ Guidelines ].
[9] The Guidelines set out the process for applying for out of country funding, and the criteria which must be met in order to be considered and approved. Relevant portions of the guidelines include the following:
Funding approval will not be granted in the following circumstances:
a) the application is incomplete;
…
c) appropriate acceptable medical care is available in BC or elsewhere in Canada;
…
e) the application has been made without a referral from the appropriate specialist* involved in the beneficiary’s care in BC;
[10] “Appropriate Specialist” is defined in the Guidelines as “a medical practitioner actively involved in the beneficiary’s care with expert knowledge in the proposed service and/or specialty that will deliver the out of country service”, and is qualified as being “actively involved in the beneficiary’s care in BC” .
[11] Trans Care BC is a provincial program run by the Provincial Health Services Authority. The Ministry says that the purpose of Trans Care BC is to provide information on transgender health and wellness, as well as to provide assistance with accessing gender-affirming health care services. The Ministry says that Trans Care BC does not provide direct clinical or counselling services, but can refer individuals seeking gender-confirming health care to services in their area.
[12] In May 2017, KW appears to have reached out to Trans Care BC to inquire about a gender affirming procedure. On May 19, 2017, KW signed a release of information form authorizing Trans Care BC to share her personal information with GRS Montreal, a surgical centre in Montreal specializing in gender-affirming surgery. The release of information form states:
The gender-affirming procedure(s) you are requesting is/are not available from surgeons who practice in the province of British Columbia . In order to obtain this care, you will be referred to GRS Montreal. [emphasis added]
[13] On October 11, 2017, the Ministry, through the BC Medical Services Plan, approved funding for KW to undergo a Penile Inversion Vaginoplasty procedure at GRS Montreal. The top of the form approving funding for the surgery indicated that it was an application for pre-authorization of payment for “Surgery for Alteration of Appearance”.
[14] On January 25, 2018, KW applied to the Ministry for funding for “Out of Country Health Services”. The application form indicated that it had to be completed by “the attending BC specialist”, or that it would be considered to be incomplete. KW’s application was not completed by a BC Specialist. Instead, it was completed by Dr. Kamol Pansritum, of the Kamol Cosmetic Hospital in Bangkok, Thailand. The procedure KW sought funding for was described on the application form as “Laparoscopic Sigmoid Colon Vaginoplasty”. In the section of the form which asked whether treatment for “this condition” was available in either BC or in Canada, the form indicated no treatment was available in BC, and that “there are no Surgeons currently performing this procedure in Canada”. Attached to the application, was a letter written by KW which set out her reason for seeking the out of country procedure as follows:
To whom it may concern,
I am a Transgender patient seeking out of country funding for Laparoscopic Sigmoid Colon Vaginoplasty.
Although the funding was already approved for Vaginoplasty surgery with Dr. Brassard in Montreal, (which is notably out of province), I have had medical advice that indicates that the procedure being offered there is not the most appropriate for my particular circumstances . I therefore prefer the procedure offered by Dr. Pansritum, who has completed the request for funding .
I am only asking for funding to the same level as what would be billed to MSP through Dr. Brassard, for which there are many prior cases.
Please note that both Ontario and Saskatchewan currently approved the procedure in Thailand on the same factual basis. [emphasis added]
[15] In a letter dated May 18, 2018, the Ministry wrote to KW and advised her that her application for funding for out of country medical services was incomplete, and that it would hold the application in abeyance until the application was complete. The letter set out that in order to review and consider the application the following information was necessary:
To review provincial coverage for surgery in Thailand, the medical recommendation is required from the attending gender reassignment surgical specialist in BC. The Specialist may provide medical documents to show the medical necessity to obtain treatment in Thailand, as the appropriate standard of care is not available for the patient in BC/elsewhere in Canada. [emphasis added]
[16] The letter further set out the part of the Guidelines which explained that if there was an “appropriate and medically acceptable treatment” available in BC or elsewhere in Canada, then the funding for the out of country procedure would not be approved.
[17] On May 30, 2018, KW’s family doctor, wrote to the Ministry on KW’s behalf, and asked the Ministry to provide the contact information for a gender reassignment surgeon in BC so KW could complete the application. The family doctor copied Trans Care BC on his correspondence to the Ministry.
[18] On June 5, 2018, KW contacted the Ministry by telephone, and asked for the contact information for a surgical specialist in BC so she could complete the application. The Ministry advised that they could not provide her with that information, and that she would have to contact Trans Care BC or her family doctor to get that information. KW advised the Ministry that she had already contacted Trans Care BC “a year ago”, and they referred her to GRS Montreal. She also advised the Ministry that her family doctor did not know of any surgical specialists in BC. The Ministry then told her it could not provide her with any further information.
[19] On June 25, 2018, the Ministry wrote back to the family doctor in relation to KW’s application for out of country health services. Among other things, the Ministry advised him that KW’s application was reviewed and that “funding approval will not be granted [where]…the application has been made without a referral from the appropriate specialist involved in the beneficiary’s care in BC”. The letter also appears to contradict the Ministry’s earlier correspondence which indicated the application was incomplete and would be held in abeyance until it was complete. In that regard, the letter advised the family doctor that:
Trans Care BC reviewed treatment services in Montreal and has confirmed the appropriate acceptable standard of care is available in Canada.
When surgery is available in Canada, the attending specialist in BC may recommend surgery outside Canada. The specialist must include peer reviewed medical articles with the application to confirm surgery outside Canada will result in a significant difference in success.
…
The recommendation for surgery is sincerely respected; however as surgery is available in Canada, provincial coverage was not approved for surgery in Thailand. [emphasis added]
[20] In the materials is a July 4, 2018 letter from Dr. Genoway to KW’s family doctor, which reads:
Thank you for sending along [KW’s] information [sic] and request for colon vaginoplasty. At this time BC Medical Services Plan is not funding patients to obtain this procedure out of country based on a patients [sic] preference for surgical technique. Currently patients in BC are being offered vaginoplasty surgery through GRS Montreal. Only in the event should they be declined care in Montreal would they be considered for alternative out of country funding.
I will also cc TransCare BC to this letter in the event the MSP policy were to change.
[21] On January 6, 2020, KW underwent Penile Inversion Vaginoplasty in Montréal.
IV DECISION
[22] The Ministry applies to dismiss KW’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Ministry to establish the basis for dismissal.
[23] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[24] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 .
[25] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [ Hill ] at para. 27 .
[26] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia , 2008 BCSC 1026 at para. 34 . However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67.
[27] To prove her complaint at a hearing, KW will have to prove that she has a characteristic protected by the Code , she was adversely impacted in services customarily available to the public, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If she did that, the burden would shift to the Ministry to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[28] The Ministry does not dispute that KW has characteristics protected by the Code . It argues that KW has no reasonable prospect of proving that she was denied a service customarily available to the public and that even if she were, she would not be able to establish her case given that she did in fact consult with Dr. Genoway, who told her that vaginoplasty was available in Canada. I first turn to the service issue.
A. Service Customarily Available to the Public
[29] The Ministry says that the service at issue here is funding for elective, non-emergency, out-of-country medical care, which it says is not provided where appropriate and accepted medical care is available in BC or elsewhere in Canada. In other words, it says, KW was not seeking a service customarily available to the public because appropriate medical care was available in Canada.
[30] KW does not respond to this argument. Nevertheless, I cannot agree with the Ministry that there is no reasonable prospect of KW proving she was trying to access a service customarily available to the public.
[31] Section 8 of the Code prohibits a person, without a bona fide and reasonable justification, from denying or discriminating against a person or class of persons regarding “any accommodation, service or facility customarily available to the public” because of a protected characteristic. To fall under s. 8, there must be a public relationship between the accommodation, service, or facility provider and the user: University of British Columbia v. Berg , 1993 CanLII 89 (SCC), [1993] 2 SCR 353 at p. 384. “Service” is not defined in the Code ; however, it must not be interpreted too narrowly.
[32] I am not satisfied that there is no reasonable prospect of KW proving that she was seeking to access a service customarily available to the public when she applied for funding to get a Laparoscopic Sigmoid Colon Vaginoplasty in Thailand. The service at issue is elective, non-emergency, out-of-country medical care funded by the Province. That is what KW applied for. The Ministry’s narrow interpretation of the services at issue would, in effect, immunize the Ministry from scrutiny under the Code , as in Chipperfield v. British Columbia (Ministry of Social Services) (No. 2) , 1997 CanLII 24842 (BC HRT), where the Ministry defined the service in issue as a service not provided by the Ministry. As the Tribunal said in Chipperfield , “To adopt the respondent’s approach to characterizing the service in issue would defeat the purposes of the Code because it would preclude any inquiry into the essence of the complaint.”
[33] That KW’s application was deemed incomplete or that KW may have ultimately been found ineligible does not alter whether she was trying to access a service within the meaning of the Code . I am satisfied that KW has taken this aspect of her complaint out of the realm of conjecture.
B. Nexus
[34] I now turn to whether there is no reasonable prospect of KW establishing a connection between her protected characteristics and the adverse impacts she experienced.
[35] In the first dismissal decision, the Tribunal found that KW had taken out of the realm of conjecture her allegations that the application process created a barrier for her as a transgender woman because it required a BC specialist to complete the form and that there were no BC specialists at the time who could complete the form for her. The Tribunal relied on the Ministry’s documents, which acknowledged that there was no one at the time in BC who could perform vaginoplasty and the Ministry’s failure to provide KW with the name of the attending specialist in BC. The Tribunal also had regard to the evidence that when KW approached TransCare BC for a referral, TransCare BC referred her to the doctors in Montreal: KW at paras. 31-33.
[36] The Ministry argues that there is now no reasonable prospect of KW proving her gender identity and/or sex was a factor in the adverse impacts she says she experienced. It says the materials show that KW did consult Dr. Genoway, who told KW that vaginoplasty was available in Canada and called Laparoscopic Sigmoid Colon Vaginoplasty a personal preference. As I understand the Ministry’s argument, KW’s position that there was no BC specialist, which the first dismissal decision relied on, has been shown to be false. It says that had Dr. Genoway’s letter been previously disclosed, the Tribunal would have dismissed the complaint.
[37] For her part, KW says that at the time she consulted Dr. Genoway, Dr. Genoway was not the appropriate or attending specialist in BC. Further, she says, Dr. Genoway was not involved in her care and did not examine her to determine her eligibility for the vaginoplasty procedure available in Montréal. According to KW, all Dr. Genoway did was to tell her and her family doctor BC’s policy at the time, which was that out-of-country vaginoplasty would not be approved for funding when vaginoplasty was available in Canada, as it was in Montréal. She says the vaginoplasty she ultimately received in Montréal led to complications and damage to her body, which Dr. Genoway was involved in treating two years later. As I understand it, KW’s position is that Laparoscopic Sigmoid Colon Vaginoplasty was not only preferred, it was also the procedure that had been medically recommended to her based on her own unique medical circumstances. KW therefore maintains on this application that there were no appropriate specialists in BC at the time she completed her application for out-of-country funding.
[38] Upon reviewing all the evidence before me, I find a hearing is necessary to explore whether Dr. Genoway was the appropriate specialist to complete KW’s application form. There is relatively little information in the materials before me that would help me understand whether Dr. Genoway had “expert knowledge in the proposed service and/or specialty” at the time she consulted with KW, as required by the Guidelines. Again, the evidence indicates that there were no doctors in BC performing vaginoplasty at the time. Indeed, in the Ministry’s evidence is information about Dr. Genoway that says she did not begin performing vaginoplasty until September 2019, a year after KW applied for out-of-country funding. While Dr. Genoway may nevertheless have been the appropriate specialist based on her knowledge and experience with other gender affirming surgeries such as breast augmentation and top surgery, I do not have that information before me. I cannot say based on the evidence that KW has not taken her allegation that there were no BC specialists to complete the form out of the realm of conjecture.
[39] The Ministry says that they could not locate any advice in KW’s medical documents that Laparoscopic Sigmoid Colon Vaginoplasty was the most appropriate for KW’s particular circumstances. While KW says she does not recall who advised her to get Laparoscopic Sigmoid Colon Vaginoplasty, she does state that she received this advice. This is consistent with statements she made in the medical documents. While more evidence may be required at a hearing to establish her case, for the purpose of this application, I am satisfied based on the statements made in her response to the application to dismiss that KW has taken this element of the complaint out of the realm of conjecture.
[40] Finally, I address KW’s allegation that cisgender women would not experience the same barriers as transgender women in the application process. The Ministry says that a cisgender woman requiring vaginoplasty would still need a plastic surgeon to fill out the form because they would “arguably still be the appropriate specialist”. The Ministry acknowledges the speculative nature of this argument but says it is difficult to address the allegation without further information. Again, while more evidence may be needed at a hearing, I do not see the Ministry’s speculation as a reason to second guess the Tribunal’s decision in the first dismissal application, where the Tribunal was not satisfied that KW has no reasonable prospect of proving the application process negatively impacted her, as a transgender woman: see KW at paras. 34-36. In my view, the new materials before the Tribunal on this application do not change the assessment that KW has taken her allegations out of the realm of speculation and conjecture.
V CONCLUSION
[41] I deny the Ministry’s dismissal application. The complaint will proceed to a hearing.
Robin Dean
Tribunal Member