Moses and others v. Lifelabs LP and another, 2026 BCHRT 225

Date Issued: October 29, 2026
File: CS-002289

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:

Noa Moses, Devan Snow, and Vincent Viezzer (by Noa Moses)
COMPLAINANTS

AND:

LifeLabs LP and Excelleris Technologies
RESPONDENTS

REASONS FOR DECISION

Tribunal Member: Theressa Etmanski

Counsel for the Complainants: Adrienne S. Smith

Counsel for the Respondents: Jennifer A. Guy, Kiri McDermott-Berryman

Date of Hearing: June 30 – July 7, 2025

Location of Hearing: Via Videoconference

I        INTRODUCTION

[1]             Noa Moses, Devan Snow, and Vincent Viezzer [Complainants] are non-binary and transgender people who, as a group, have filed a human rights complaint against LifeLabs LP and its subsidiary, Excelleris Technologies [Respondents]. They allege that the Respondents discriminated against them and denied them a service customarily available to the public because of their gender identity or expression contrary to s. 8 of the Human Rights Code. They seek individual and systemic remedies.

[2]             Throughout this decision, I refer to each Complainant in the manner they requested at the hearing: Noa, Snow, and Mr. Viezzer. By doing so, I mean no disrespect.

[3]             Noa alleges that LifeLabs misgendered them when it refused to accept their non-binary gender identity and forced them to select a binary sex as a condition of providing laboratory services. Noa further says LifeLabs disclosed their non-binary gender identity without their consent (i.e. “outed” them) to other patients by requiring them to have a conversation about their gender in a public space.

[4]             Snow alleges the Respondents misgendered him when they refused to update his gender identity in their records when he sought laboratory services and instead proceeded to use the sex assigned to Snow at birth. Snow further says the Respondents denied his request to provide a reference range with his lab results other than that associated with his sex assigned at birth, even though he explained that his doctor had advised him to make the request for medical reasons. Finally, Snow says LifeLabs outed him as transgender to other patients in this encounter by not offering him a private space to have a conversation about his gender.

[5]             Mr. Viezzer alleges the Respondents overrode his sex marker and misgendered him on his lab reports on multiple occasions. He further alleges that a LifeLabs staff wrote “FTM” on his lab requisition form, which he says is a transphobic slur and outed him as transgender. Finally, he says he complained to the Respondents about being misgendered, but they did not take appropriate action to resolve the issue.

[6]             The Respondents deny that the Complainants experienced the discriminatory adverse impacts alleged. In the alternative, they submit that they have a bona fide reasonable justification. In short, they say their laboratory records for a person must reflect the sex marker on the person’s government issued identification, regardless of the person’s gender identity. They further argue the accommodations sought by the Complainants would cause them undue hardship because they are legally impermissible and technically impossible. They argue that there is nothing else they could reasonably or practically do to avoid the negative impact on the Complainants. Nevertheless, the Respondents say they are sincerely committed to resolving the issues raised by the Complainants and have already made significant efforts in this regard.

[7]             To resolve this complaint, I must first address a preliminary issue raised by the Respondents regarding the timeliness of Mr. Viezzer’s complaint. Next, I must determine whether the facts established on the evidence establish that each of the Complainants experienced the alleged adverse impacts connected to their gender identity or expression. If they have, then I must decide whether the Respondents have established a reasonable justification.

[8]             The final issue to determine in this case is the appropriate remedy.

[9]             For the following reasons, I find the complaint is justified, in part. 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.

[10]         I apologize to the parties for the delay in issuing this decision.

II      PRELIMINARY ISSUES 

A.    Privacy considerations

[11]         During the hearing, counsel for the Complainants confirmed that the group was not seeking an anonymization order. However, they requested that the Tribunal take care not to publish unnecessary information relating to the Complainants’ medical care in this decision.

[12]         It is a practice of this Tribunal not to publicize personal details of participants that are not necessary to explain the decision. I have followed this practice here, with particular attention to the Complainants’ medical information.

B.    Timeliness objection to Mr. Viezzer’s Complaint

[13]         The first issue I need to decide is whether Mr. Viezzer’s complaint should be dismissed, in whole or in part, based on timeliness. As explained below, I conclude that his complaint is not out of time, but the scope of the allegations I will adjudicate are confined to the allegations in the complaint, as amended, and not new allegations raised during the hearing.

[14]         Section 22 of the Code requires a complaint to be filed within one year of the alleged contravention, or if a continuing contravention is alleged, within one year of the last alleged instance of the contravention: School District v. Parent obo the Child, 2018 BCCA 136 at para. 68. The Tribunal may accept all or part of a late-filed complaint if it is in the public interest to do so and no substantial prejudice will result to any person because of the delay.

[15]         The Respondents argue that Mr. Viezzer’s complaint should be dismissed as out of time. They say that the allegations in the initial Complaint Form occurred more than one year prior to filing. They say Mr. Viezzer attempted to expand the temporal scope of his complaint by filing a Complaint Amendment alleging a continuing contravention. However, they say he did not produce evidence to establish the facts necessary to support these allegations. They further argue that even if the allegations in the Complaint Amendment are proven, they are not a continuing contravention. To the extent Mr. Viezzer sought to expand the scope of his complaint during the hearing, the Respondents say those allegations are also out of time. Finally, the Respondents say there is no public interest in the Tribunal accepting the late-filed complaint.  

[16]         Mr. Viezzer says it is too late in the Tribunal’s proceedings for the Respondents to advance a timeliness argument. Further, he says the objection is an inappropriate attempt to exclude evidence admitted during the hearing. In any event, he says his evidence establishes a years-long contravention of the Code and if any part of it is late filed, it is in the public interest to accept it.

[17]         I begin with the question of whether it is appropriate for me to consider the Respondents’ timeliness objection. For the following reasons, in the circumstances, I am satisfied that it is.

[18]         To begin, the Respondents’ timeliness objection has not yet been adjudicated by the Tribunal. Though I recognize that the issue of timeliness is often addressed at an earlier stage of the Tribunal’s proceedings, that was not the case here. Though the Respondents raised the issue in their Complaint Response, the issue was not adjudicated by the Tribunal before the hearing on the merits. I note that this complaint was subject to the Tribunal’s Case Path Pilot project where a Tribunal Member determined that proceeding directly to a hearing would best facilitate the just and timely resolution of the complaint. While it was open for the Respondents to file a Form 7.5 Application seeking to have the timeliness question adjudicated earlier in the process, they were not required to do so if they were content to address the issue in the context of a hearing on the merits.

[19]         In addition, I understand the Respondents’ arguments to be based, at least in part, on new evidence and argument presented during the hearing. To the extent that may raise a timeliness issue, it is difficult to fault the Respondents for not raising the objection earlier in the Tribunal process.

[20]         Finally, while it may have been helpful for the Respondents to reiterate during the hearing that timeliness remained a live issue, I am satisfied that there is no unfairness to Mr. Viezzer in considering that issue now. The Complainants had the right to reply to the Respondents’ closing submissions where this issue was raised, and they did so.

[21]         I now turn to question of whether any of Mr. Viezzer’s allegations are out of time, beginning with the allegations about events in 2019, followed by the allegations about events in 2014-2017. Before I do that, I pause to emphasize that timeliness is assessed based on the allegations in the complaint, and not what is proven at the hearing: Kinexus Bioinformatics Corporation v. Asad, 2010 BCSC 33 at paras. 165-167. It is therefore not necessary for me to consider, for the purpose of resolving this issue, whether Mr. Viezzer proved his allegations during the hearing. Rather, I must determine if all or some of Mr. Viezzer’s allegations occurred more than one year before the complaint was filed, and if so, whether the older allegations form part of a continuing contravention which is grounded in a timely allegation.

1.     2019 Allegations

[22]         Mr. Viezzer’s allegations about events in 2019 are set out in the Complaint Form and Complaint Amendment.

[23]         I understand Mr. Viezzer to allege that the Respondents discriminated against him in the provision of a service as follows:  

a.   On or around May 27, 2019, the Respondents misgendered him on a lab report. His BC Services Card describes him as “M” for male, and his doctor identified him as “M” on the lab requestion form. However, his lab results report labeled him as “F” for female. He alleges that the Respondents manually overrode his gender marker.

b.   In or about May 2019, he had a conversation with LifeLab’s Deputy Medical Director about being misgendered on lab reports. During this call, the Deputy Medical Director admitted to overriding transgender patients’ gender markers for billing purposes and stated that Lifelabs thought that in doing so, they were “doing good”. Mr. Viezzer requested that LifeLabs archive his old lab reports so his trans status would not be revealed to anyone without his consent, and so the misgendering would not continue. He alleges that LifeLabs failed to do this.

c.   In or around July 2019,[1] he was misgendered by a LifeLabs staff person, who circled his “M” gender marker and wrote “FTM” on his requisition form. He says that he does not identify as “FTM” and experienced this as a transphobic slur. He says that “FTM” is an outdated way to indicate that someone is transgender.

d.   In or about November 2019, he was again misgendered on his lab reports. He had another conversation with LifeLabs in which he asked them to resolve this issue. Mr. Viezzer alleges that LifeLabs’ response to his concerns was inadequate and this conversation impacted his mental health to the point that he sought immediate medical attention.

e.   On or around November 8, 2019,[2] Mr. Viezzer was misgendered by Excelleris in lab reports regarding cancer screening results that listed his sex as “U” (for unknown or unspecified). He says that U is not his sex or gender.

[24]         Mr. Viezzer also alleges that, in or around December 14, 2019, he delayed or declined medically necessary cancer screening because he did not want to be misgendered. He further alleges that on or around January 16, 2020, he was triggered by seeing older lab reports where he was misgendered. I understand these two allegations to be about the ongoing impact of previous alleged conduct by the Respondents, not as separate alleged violations of the Code. 

[25]         This complaint was filed on October 9, 2020. Therefore, the allegations regarding events in November 2019 are timely. However, the May 2019 and July 2019 allegations are untimely, unless they form part of a continuing contravention of the Code that is grounded in a timely allegation. 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 57at para. 23; School District at para. 50.

[26]         I understand the Respondents to argue that these allegations are not continuing contraventions because they are not separate contraventions of the Code, but rather all stem from Mr. Viezzer’s May 2019 allegation that the Respondents were over-writing his gender marker. In that sense, they say these are continuing consequences of the first alleged contravention, rather than continuing contraventions.

[27]         I begin by considering whether any of the timely (November 2019) allegations are arguable contraventions of the Code. I then consider whether the May and July 2019 allegations are arguable contraventions of the Code connected to the timely allegations.

[28]         The Tribunal applies the “arguable contravention test” to determine whether separate allegations, if proven, contravene the Code: see Chen at para. 23; Oram v. South Okanagan Similkameen Mental Wellness Society, 2025 BCHRT 63 at para. 24. The threshold for passing the “arguable contravention test” is low: Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56. Mr. Viezzer must only allege facts that could establish a gender identity or expression-based adverse impact in the context of his service interaction with the Respondents.

[29]         The assessment of whether discrete allegations are part of a continuing contravention 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.

[30]         First, I find that the November 8, 2019, allegation is an arguable contravention of the Code. Mr. Viezzer alleges that on this date he received lab test results in which his gender marker was replaced with a “U”. This is an allegation of misgendering which could amount to an adverse impact based on his gender identity or expression. As this allegation is timely, it could ground older allegations of the Code if they are of the same character.

[31]         Similarly, I find that the November 2019 allegations involving another instance of misgendering and LifeLabs’ inadequate response to his complaint of the same are each arguable contraventions of the Code. The Tribunal has held that the failure to take appropriate action to respond to a complaint of discrimination can independently cause harm, and therefore, can independently be a discriminatory breach under the Code: Employee v. The University and another (No. 2),2020 BCHRT 12 at para. 272.

[32]         Next, I am satisfied that the May and July 2019 allegations are of the same nature as the November 2019 allegations. These allegations involve instances in which Mr. Viezzer alleges that the Respondents disregarded or rejected his male gender marker and replaced it with other information, whether that be a female gender marker or the notation “FTM”. The May 2019 telephone allegation is also of the same nature, as it involves the Respondents’ alleged reasons for and response to Mr. Viezzer’s complaint regarding the misgendering issue. I am also satisfied that the gap in time between these allegations is not significant in the context of accessing laboratory services, which is typically not a daily or weekly occurrence.

[33]         Finally, I am satisfied that these are each discreet allegations of contraventions of the Code, rather than the ongoing effect of untimely contraventions. In each allegation, a different decision was made, or action taken, by the Respondents on how to treat Mr. Viezzer’s male gender marker.

[34]         Having found that all of Mr. Viezzer’s 2019 allegations form part of an alleged continuing contravention, I find his complaint is timely.

[35]         Had I reached a different conclusion, I still would have found that it is in the public interest to deal with the late allegations given the novelty of the allegations and the public interest in addressing health care barriers for transgender and non-binary people. Further, although a complainant bears the burden under s. 22(3) of the Code, the 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 at para. 14. The Respondents here have not explained what prejudice they have experienced having to defend against the later allegations. I am satisfied that any prejudice was not substantial.

2.     2014 – 2017 Allegations

[36]         I find it necessary to address Mr. Viezzer’s allegation that the Respondents overrode his male gender marker since 2014, and specifically between 2014 and 2017. I find that Mr. Viezzer’s alleged Code breaches by the Respondents between 2014 and 2017 are beyond the scope of the complaint, and I will not adjudicate them. I will now explain why.

[37]         First, I am not satisfied that Mr. Viezzer’s complaint sets out an arguable contravention of the Code regarding events between 2014 and 2017. Mr. Viezzer’s complaint refers to instances of the Respondents overriding his gender marker “since 2014”. This reference, however, is vague and not sufficiently particularized. I read this detail as background information or context to the complaint, which is about allegations in 2019. Looking at the information provided in the complaint alone, Mr. Viezzer has not provided sufficient details for this conduct to pass the “arguable contravention” test. Notably, he did not delineate the dates or number of instances on which the alleged conduct occurred, or what the specific alleged adverse impact was on each date.

[38]         Second, I am not satisfied that it is appropriate to permit Mr. Viezzer to expand the scope of his complaint at this late stage. Throughout the hearing and in his closing submissions, Mr. Viezzer argued that he established a years-long contravention of the Code. To that end he led evidence and made arguments about the Respondents overriding his male gender marker on lab reports on specific instances between 2014 and 2017.

[39]         I understand the Respondents’ position to be that these allegations are out of time and allowing Mr. Viezzer to amend his complaint at this stage would create an unfairness from the lack of notice.

[40]         The Complainants disagree. Mr. Viezzer says he did not discover these reports until sometime in 2019, after he began his investigation into the prevalence of the misgendering issue. The Complainants say that it would offend the discoverability principle to exclude these allegations, and the Respondents should not be permitted to avoid their human rights obligations by concealing records for long enough.

[41]         Ultimately, I agree with the Respondents on this point. While Mr. Viezzer’s late discovery of the records from 2014-2017 may be a public interest consideration for accepting a late-filed complaint, this does not resolve the fact that the allegations were never put forward as arguable contraventions of the Code in advance of the hearing.

[42]         Mr. Viezzer had access to the evidence relevant to this conduct in advance of the hearing, and he could have sought to amend his complaint to include these allegations in a timely manner. He did not do so. This created an unfairness to the Respondents who were not afforded an opportunity to investigate their involvement in each alleged instance.

[43]         I find that Mr. Viezzer is attempting to expand the scope of his complaint to include these allegations without bringing an application to do so. These allegations are beyond the temporal scope of this complaint, and I do not consider them in this decision other than as context to the timely allegations in the complaint.

III    EVIDENCE

A.    Witness testimony

[44]         I heard from nine witnesses throughout the hearing.

[45]         The Complainants each testified on their own behalf.

[46]         The Complainants also called Dr. Elizabeth Saewyc as an expert witness for the purpose of giving evidence on the barriers to access to healthcare for trans and non-binary patients, and best practices for mitigating those barriers. Dr. Saewyc has extensive qualifications in this area. The Respondents did not object to Dr. Saewyc’s qualifications as an expert or the admission of her evidence.

[47]         Dr. Saewyc prepared an expert report prior to the hearing, in which she responded to the following questions:

a.   What are the risks and harms to trans and non-binary patients in the healthcare system associated with:

                                            i.        Misgendering?

                                           ii.        Disclosing transgender status to, and by, healthcare providers?

b.   How do these risks or harms impact the health of trans and non-binary patients?

c.   Are there ways to mitigate any of these risks or harms?

d.   What are the best practices in the provision of healthcare to non-binary and trans patients with respect to gender markers and reporting or recording transgender status? Please consider intake and reception, charting, direct care (like taking a sample), and communicating results.

e.   What recommendations are there for provision of healthcare to trans and non-binary patients when a sex-linked characteristic may be relevant to their care?

f.    Can these practices be implemented in a way that is compatible with the quality of care, the integrity of the healthcare system, and the accuracy of test results?

[48]         The Respondents called five employees as witnesses:

a.   Phillip Morehouse, National Director of Quality and Regulatory Affairs;

b.   Stephan Mueller, Director of IT Lab Operations;

c.   Sam Kochukalikkal, Director of IT Applications;

d.   Norma Neale, Director of Client Services in Ontario; and

e.   Catherine Ross, Vice President of Medical and Quality Affairs.

[49]         I am satisfied that all witnesses testified to the best of their ability and recollection, though their memories were sometimes impacted by the passage of time.

[50]         To assess the accuracy or reliability of a witness’s testimony, I consider factors including “the witness’ ability and opportunity to observe events, the firmness of their memory, their objectivity, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes their pre-trial evidence by the time of trial or their testimony at trial during direct and cross-examination, whether the witness’ testimony seems implausible, and the demeanor of a witness generally”: Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2019 BCSC 739 at para. 90.

[51]         Throughout this decision, I indicate where I have concerns about the accuracy or reliability of witness testimony regarding particular facts in dispute.

B.    Objections to evidence

[52]         The Complainants object to the Respondents’ reliance, in their closing submissions, on the Diagnostic Accreditation Program’s [DAP] accreditation standards [DAP Standards] administered by the College of Physicians and Surgeons of British Columbia [CPSBC]. In particular, the Respondents cite a clause from the Standards which describes the required content of lab reports. The Complainants say that while this was referenced “tangentially” during the hearing, the DAP Standards were not disclosed to them or entered as evidence. The Complainants further say the DAP Standards are not publicly available.  

[53]         I agree that the DAP Standards are not in evidence. The Respondents did not put forward the full text of the DAP Standards during or after the hearing. However, during the hearing, Phillip Morehouse testified about the DAP, and the DAP Standards which are used to determine accreditation, as a basis for some of LifeLab’s policies and practices. This evidence was admitted without objection. To the extent that the Respondents’ submissions rely on information that was put into evidence by Phillip Morehouse, I can consider this evidence subject to weight, given that the DAP Standards are not in evidence. I do not find that the Respondents are seeking to rely on additional information not in evidence beyond citing the source of the authority for the evidence provided by Phillip Morehouse.  

[54]         The Respondents have also raised, for the first time in their closing submissions, procedural fairness concerns with respect to two pieces of evidence admitted at the hearing through Mr. Viezzer: a) a lab report from November 21, 2014, in which Mr. Viezzer’s gender is recorded as “F”; and b) the lab requisition form on which Mr. Viezzer says LifeLabs staff wrote “FTM”. The Respondents say that these documents were not previously disclosed to them, and as a result, they were not able to make full answer and defence. However, the Respondents did not object to these documents when they were presented at the hearing. Nor did they request an adjournment to review the documents or investigate the matter further. It is incumbent on parties to raise procedural fairness concerns at the earliest possible opportunity. The Respondents have not provided any explanation as to why they did not raise this issue until their closing submissions. In these circumstances, I am not satisfied that admission of these documents renders the process unfair for the Respondents. However, I can and will take the late disclosure of this evidence into account when assessing the weight it should be afforded. 

IV    FACTUAL BACKGROUND

A.    Sex or gender markers on provincial health cards  

[55]         As the complaint raises questions about the Respondents’ record keeping and its relationship to government-issued identification in British Columbia, I heard evidence about provincial health cards and the information recorded on them. This evidence was not disputed.

[56]         The province issues BC Services Cards to eligible residents as a form of photo identification, as a means to access services, and to establish an individual’s insurance enrollment for provincial health care benefits with the Medical Services Plan [MSP]. Each individual’s BC Services Card contains their personal health number [PHN]. The BC Services Cards replaced the previous provincial health card known as the CareCard, although this name is often still used colloquially. The terms CareCard, BC Services Card, and health card are used interchangeably throughout this decision.

[57]         There is a field on the BC Services Card that is labelled “sex”, but the parties referred to – interchangeably – as a “sex marker” or “gender marker”. Since November 2018, the options for this field are “M”, “F” or “X” (for individuals who do not identify as male or female). I heard evidence that following more recent changes, BC residents can apply to change their marker to “F”, “M” or “X” without medical approval. In this manner, the parties appear to share the understanding that what is sometimes described in the “sex” field on a BC Services Card is gender identity, rather than a representation of a person’s physiology, and these concepts do not always overlap.   

B.    Requisition forms for laboratory tests

[58]         I heard evidence about the form used by LifeLabs for patient laboratory requests. Phillip Morehouse testified that LifeLabs has developed a form called the “Laboratory Requisition”, based on a similar form developed by the Ministry of Health and administered by Provincial Laboratory Medicine Services [PLMS]. PLMS is part of the Ministry of Health [Ministry] and responsible for administering the Laboratory Services Act and Regulations. Phillip Morehouse testified that LifeLabs has limited latitude to depart from the Ministry’s form and is generally required to follow the same format. Both forms contain a field labelled “sex” with two options, “M” or “F”. There is no field labelled “gender”.

C.    Test results and reference ranges

[59]         Once laboratory testing is complete, LifeLabs creates a report in which the results are recorded, before distribution to patients and health care providers. The reports contain the patient’s test results, as well as a relevant reference range against which those results can be measured.

[60]         Phillip Morehouse testified that these reports are required to contain specific information based on the DAP Standards (discussed below) and as directed by LifeLabs’ Medical Director and their delegate. This includes the patient’s name, personal health number, date of birth, age, sex, the ordering practitioner and their contact information as well as any “copy to” physicians, the tests that were ordered, the results of those tests, any appropriate flags if the results are normal or abnormal, the relevant reference ranges, and dates and location of testing.

[61]         Phillip Morehouse explained that reference ranges are a statistical calculation of the presumably “normal” biological state based on testing of a sample of presumably healthy individuals. Certain variables may impact reference ranges, such as sex, age, clinical conditions, or the method and instrument used for collection of the sample. Upon receiving lab result reports, health care practitioners can review their patient’s test results in relation to the reference intervals provided by LifeLabs, along with the patient’s symptoms and other presentations, and either make a diagnosis or determine if further testing or other steps are required for their care.

[62]         Phillip Morehouse stated that he was not aware of any reference ranges specifically curated for transgender individuals or those receiving gender affirming care. He explained that LifeLabs does not typically provide both male and female reference ranges on a test result; however, they are currently working on doing so for specific tests if a patient’s sex on their BC Services Card is “X”. Specifically, Phillip Morehouse’s team has identified approximately 35 tests, and at the time of the hearing, had taken steps to program 12-15 tests to be accompanied by both male and female reference ranges on these patients’ lab reports. The Respondents say this change was made because LifeLabs is unable to make a medical determination on what reference range is most appropriate for those using an “X” marker.  

D.   The Respondents

1.     LifeLabs LP

[63]         LifeLabs provides laboratory testing services, which assist physicians and other healthcare professionals to diagnose, treat, monitor, and prevent disease in patients. It operates laboratories and Patient Services Centres [PSC] across Canada, including approximately 130 throughout British Columbia, where it collects blood samples, among other services.

[64]         In British Columbia, LifeLabs operates through a contract with the Ministry and regulated by PLMS through the Laboratory Services Act and Regulations. As a diagnostic facility, it must be accredited through the DAP, which is administered by the CPSBC. To maintain its accreditation, LifeLabs must follow the DAP Standards and there are regular audits and inspections to confirm compliance.

2.     Excelleris Technologies

[65]         Excelleris is a subsidiary of LifeLabs responsible for the electronic transmission of information.  

[66]         For example, Excelleris manages LifeLab’s proprietary Laboratory Information System (LIS) called IntRlab. Other laboratories in the province use different LIS providers. Stephan Mueller explained that the LIS is the “source of truth” for testing that happens at a laboratory. By “source of truth”, I understand him to mean that IntRlab stores LifeLab’s official record of patient information, testing provided, and results. This means that at LifeLabs, when a requisition form or referral order comes in for a particular patient, the information from those documents is cross-referenced against the patient’s BC Services Card and entered into IntRlab. Once samples are taken from a patient, that information is also entered into IntRlab. Then when the results come back, they are finalized in IntRlab, and IntRlab will send them out to downstream systems for distribution and billing using the information entered into IntRlab.

[67]         Excelleris also manages Rover, which is an application responsible for the electronic distribution of lab results reports for LifeLabs, other laboratories, and most of the Health Authorities in the province. Rover is programmed to receive information from the different LIS providers used by these different sources. Rover ensures that reports are delivered to the appropriate health care providers through the specific Electronic Medical Record (EMR) systems used by doctors’ offices or other specialty clinical information systems that receive reports. Rover also sends lab result reports into the Provincial Laboratory Information System (PLIS) which stores the laboratory histories of patients in BC.

[68]         As mentioned above, IntRlab is also responsible for sending data into a billing application called LARS, which takes the information and applies the appropriate business rules required by the Ministry, and then sends the information to MSP daily.

[69]         IntRlab also interfaces with various other systems, including sending electronic orders to the BC Cancer Agency.

[70]         Finally, Excelleris provides an API (a programming interface used for different systems to talk to each other and receive data) for downstream systems, such as the EMRs in doctors’ offices or the clinical systems of Health Authorities, to download to enable them to receive the test result reports from LifeLabs through Rover.

E.    The Complainants’ allegations

1.     Noa Moses

[71]         Noa Moses is a non-binary transgender person. Noa alleges that the Respondents discriminated against them by misgendering and outing them when they attended a LifeLabs location in Vancouver on October 10, 2019. Noa was the only witness who gave evidence about the events of October 10, 2019. The Respondents did not call any witnesses to dispute Noa’s version of events.

[72]         Noa attended LifeLabs with a requisition form prepared by their doctor. They testified that their doctor had declined to select “M” or “F” (for male or female) in the sex field on the requisition form, as neither option was appropriate for them. There is a dispute about what, if anything, was noted in the sex field instead. Noa testified that when they brought it to LifeLabs it was left blank, but the Respondents argue that the letter “U” (for “unknown”) was typed by Noa’s doctor. The requisition form was admitted as evidence at the hearing, and I find it does have the letter “U” typed into the sex field and that the letter has been crossed out with pen.

[73]         Noa did not have their health card with them but says they provided the LifeLabs staff at the front desk with their PHN. They say the staff went through the requisition form with them to double check the information. When they got to the sex field on the requisition form, the staff asked them whether they were male or female. Noa says they responded “neither”, but this response was not accepted and the staff repeated the question. Noa says this conversation happened in front of the waiting area, where they believed other people could hear what was being discussed. Noa testified that LifeLabs staff did not offer them a private space to have this conversation.

[74]         Noa testified that they were subsequently taken to another area where other people were waiting for their blood to be drawn. Noa said that staff continued to question them about their gender, and at a certain point they replied: “I am a non-binary trans person, neither marker is appropriate for me.” Noa says another staff member stated that they were going to call their doctor to find out which gender marker to use, to which Noa replied that they would not get a different answer from their doctor. The staff were unable to reach Noa’s doctor by telephone. At that point they informed Noa that if they did not choose a male or female gender marker, staff would not draw their blood.

[75]         Noa says this back-and-forth went on for about an hour, with staff periodically coming back to ask them again to select a binary gender marker. Noa says they told staff 10 to 15 times that neither binary marker was appropriate for them. Noa says they were never informed why they were being asked to provide this information. Eventually, a staff member came to them with a piece of paper where they had written “M” and “F” and asked Noa to point to one. Noa says they were so exhausted and upset by that point that they just pointed to a letter on the paper.

[76]         At some point, it is unclear on the evidence precisely when, Noa also provided staff with their provincial identification card (I understand this to have been a BCID card), which contained a binary gender marker. As mentioned above, the requisition form admitted into evidence shows what appears to be the letter “U” crossed out with pen. Next to that there is a hand-written binary gender marker with a note that says: “as per pt, which matches [possessive pronoun] ID”.  It is undisputed that these hand-written notations were added by LifeLabs staff.

[77]         There is no dispute that LifeLabs ultimately processed Noa’s bloodwork with the demographic information on their BCID provided at the time.

2.     Devan Snow

[78]         Devan Snow is a transmasculine person who does not identify as male or female. Snow uses the pronouns they and them, as well as he and him, which is reflected throughout this decision. Snow alleges that the Respondents discriminated against them by misgendering and publicly outing them when they attended a LifeLabs PSC in Burnaby on October 12, 2019. Snow further alleges that the Respondents refused to provide medically appropriate reference ranges with their test results, instead relying on reference ranges associated with their sex assigned at birth.

[79]         The parties’ closing submissions refer to allegations of discrimination beyond the scope of what was included in Snow’s Complaint Form, including that they were deadnamed and received a lower quality of health care by and from LifeLabs. No application to amend the complaint was made. I restrict my analysis below to the allegations in the complaint, as set out above.

[80]         As part of Snow’s medical care, they required blood work multiple times per year. Their doctor provided “standing orders” for these laboratory tests to be completed. I understand this to mean that Snow’s doctor had provided a laboratory requisition that could be used multiple times for the same tests to be repeated.

[81]         Snow’s first allegation is that he was misgendered by LifeLabs. The particulars of this allegation appear to have evolved over time. Initially, in his Complaint Form, Snow alleged that LifeLabs refused his request to update his gender marker to “M” in their records. At the hearing, Snow testified that his request was actually for his gender marker to be updated to non-binary. As I understand it, the thrust of the allegation is that LifeLabs refused to update its records to include information that was different from the gender marker on Snow’s BC Services Card.

[82]         Snow’s second allegation is that LifeLabs refused to provide them with medically appropriate reference ranges on their laboratory test results. While in the Complaint Form they alleged that they requested that male reference ranges be provided, at the hearing they testified that they requested both male and female ranges be provided. Snow testified that this request was on the advice of his doctor, as they had been having trouble obtaining the appropriate reference ranges to accord with their medical needs at the time.

[83]         Snow testified that they did not get a satisfactory response to their requests. They said the first staff member they spoke to passed them along to another person for intake, and then they were told to take a seat. Subsequently, they were called up to the front desk again and asked to provide their laboratory requisition form and identification. Snow testified that they provided their Driver’s License, which contained their deadname and their sex assigned at birth. Snow repeated their request to update their gender identity and receive different reference ranges. Snow testified that there was a lot of commotion and lack of understanding by LifeLabs staff in response to these requests. They say that at least four staff were involved in discussing their requests.

[84]         Snow’s third allegation is that he was outed by the Respondents in this encounter as he was forced to discuss his gender identity in a public setting. Snow stated that that this encounter occurred at the front counter, directly in front of the waiting area which was occupied with other people. Snow said everyone in the waiting room could hear what he was saying, and that his requests had become a “huge thing”. On cross-examination, he clarified that he could not hear everything that was said by the LifeLabs staff while they were conferring with each other, but that the people in the waiting area could hear his voice and were staring at him. He says LifeLabs staff did not offer him a private space to have this conversation.

[85]         The Respondents did not call evidence to dispute Snow’s version of events. They say that Snow chose to out himself at intake and did not request a private space to have the conversation about his gender. They further say that Snow’s evidence is inconsistent and falls short of establishing that any third party heard information about his gender identity or even if they did, that an unsafe or hostile environment was created in the waiting room.

[86]         There is no documentary evidence before me regarding what was provided to LifeLabs by Snow’s doctor regarding his sex or instructions regarding reference ranges.  While the Complainants say in their closing submissions that Snow’s doctor had refused to misgender him on the laboratory requisition form which he presented to LifeLabs, that is not established on the evidence. Snow testified that he could not recall what his doctor had written on the requisition form and the form admitted in evidence appears to be blank other than some hand-written notations and the demographic labels affixed by LifeLabs. Snow did not call his doctor as a witness in these proceedings.

[87]         The demographic labels added to the requisition form by LifeLabs contain the binary gender marker listed on Snow’s identification card at the time, which he says is not representative of his gender identity or the change he requested that LifeLabs make to his information.

[88]         After this visit, Snow says he immediately called LifeLabs’ 1-800 number to complain about what had happened. He says he received a call back a few days later and was told “the medical system just wasn’t there yet”. He says he was told that LifeLabs “would bring [his] complaint up the line”, and “would be working on a solution”. However, Snow says LifeLabs never contacted him again about the matter.

[89]         Snow testified that they subsequently accessed their blood test results online through the MyHealthBC portal. Their doctor was not immediately available to discuss the results. They say only one binary reference range was provided with the results based on the sex appearing on their BC Services Card. Snow testified that the reference range provided was not the appropriate range for them medically, and as a result there were a number of warning flags noted on their results. Snow stated that this caused them to feel anxious and left them to do their own internet research to find the appropriate reference ranges.

[90]         The Respondents note that Snow did not put into evidence the test results, or any medical evidence to support that the reference ranges provided on their lab report were inappropriate for them from a medical perspective. However, the Respondents do not dispute that both male and female reference ranges were not provided on Snow’s lab test results.  

3.     Vincent Viezzer

[91]         Vincent Viezzer is a man whose gender identity does not match the gender assigned to him at birth. He identifies as a man, a man of transgender experience, and a trans man. His gender marker is “M”.

[92]         Mr. Viezzer provided testimony describing a multitude of hardships he has endured throughout his life connected to his transgender experience, including many negative encounters with the medical system. He testified that he updated the gender marker on his legal identification documents in 2011 to serve as “armour” against further challenges to his male gender identity.

[93]         Despite his efforts, Mr. Viezzer alleges the Respondents misgendered him on his lab reports, wrote a transphobic slur which outed him on his lab requisition form, and did not take appropriate steps to resolve his concerns when he complained about this conduct. 

a.   2019 Visit to LifeLabs

[94]         In his complaint form, Mr. Viezzer alleges that sometime in May 2019, he attended a LifeLabs location in Vancouver. In his testimony, Mr. Viezzer was unable to recall the exact date of this visit but was confident that it actually occurred in July 2019 based on where he worked at the time of this incident.

[95]         The Respondents did not call any witnesses to testify about the events on this day, nor did they cross-examine Mr. Viezzer about his version of events.

[96]         Mr. Viezzer says he had printed out a lab requisition form which was filled in and signed electronically by his doctor on July 4, 2019. He testified that there were no handwritten notations on the requisition form when he received it from his doctor. A photo of this requisition form was admitted into evidence at the hearing. The gender marker typed by his doctor on the requisition form is “M”.

[97]         Mr. Viezzer says he handed the requisition form to LifeLabs staff at the front desk along with his identification. The staff reviewed the form and added demographic labels containing information consistent with the labels seen on other requisition forms in evidence in this case. Mr. Viezzer testified that the requisition form was handed back to him, but it now contained some handwritten notations and checkmarks. Most strikingly to Mr. Viezzer, the form now contained a circle around the “M” with the letters “FTM” handwritten slightly below. Vincent understood these letters to mean “Female to Male”. He states that he had an emotional physiological reaction to seeing this writing, which he experienced as being “nauseatingly offensive” and immediately took a black marker and scribbled the letters out. The photo of this lab requisition form in evidence contains a hand-drawn circle around the “M” and a mark consistent with a black marker having been used to cover a small amount of text.

[98]         Mr. Viezzer could not recall whether he proceeded to have his blood tested that day but does not believe that he did. He noted that there are no stickers on the lab requisition indicating that blood was drawn, as are seen on the other lab requisition forms in evidence where the blood work was completed. He states that he later called LifeLabs’ 1-800 number to inquire about how staff would have access to information about his transgender status, and whether there was a policy that required this notation. He says he was assured that there was no policy that required this.   

[99]         While the Respondents say it was disclosed late, they do not dispute the credibility of the documentary evidence provided or Mr. Viezzer’s evidence that the letters “FTM” were written on the requisition form. However, they deny that LifeLabs staff added the letters “FTM” to the requisition form. The Respondents state that there was no way for LifeLabs staff at the front counter to have information about Mr. Viezzer’s transgender experience to be able to add this notation. They suggest instead that it was someone at Mr. Viezzer’s doctor’s office who wrote the letters “FTM”.

[100]      Further, the Respondents say that Mr. Viezzer’s version of events is not logical, as it is contrary to LifeLabs’ practices and procedures. Specifically, they say it is not LifeLabs’ practice to hand back a requisition form to a patient after they have affixed demographic labels to it. Rather, Norma Neale testified that after demographic information has been confirmed and demographic labels have been affixed, the staff at intake will place the requisition form on the “phlebotomy rack”. The phlebotomy rack is located next to the station of the staff performing intake and data entry, away from view of the customers in the waiting area to maintain customer privacy. When it is time for the next customer to have their blood drawn, the phlebotomist or medical lab assistant would come out, check the queue system to determine whose turn it is, and then select the appropriate requisition from the phlebotomy rack. The requisition is then assigned a cubicle number and the customer is informed where to go for further identity confirmation and to have their sample taken.  

[101]      I accept that this is generally the procedure by staff at LifeLabs. However, the problem with this explanation is that it does not account for how Mr. Viezzer could have taken a photo of the requisition form after the demographic labels were added, which is the undisputed evidence before me.

[102]      I am satisfied on a balance of probabilities that LifeLabs staff did write the notation “FTM” on Mr. Viezzer’s lab requisition form. The evidence is clear that LifeLabs staff commonly make written notations on lab requisition forms, and in this case did in fact make other written notations on Mr. Viezzer’s lab requisition. Aside from the content covered by black marker, there are marks in pen on the requisition form including four numbers in the lower right corner, which I understand to be a staff identification number. The other lab requisitions in evidence all contain checkmarks or other handwritten notations made by LifeLabs staff, and Phillip Morehouse confirmed in his testimony that staff commonly make notations on requisition forms. In contrast, the information entered by Mr. Viezzer’s doctor was typed and sent electronically. I accept Mr. Viezzer’s evidence that these letters were not on the lab requisition form before he brought it to the PSC.  

[103]      I also heard evidence that LifeLabs staff have access to IntRlab when registering patients upon arrival. Stephan Mueller explained that staff at the PSC would look to see if a patient record already exists, and if so, they would use the patient information in the system; otherwise, they would enter the patient’s information manually. This is confirmed in the Respondents’ “New Patient and Accession Entry Procedure” document. The evidence before me also establishes that Mr. Viezzer, without his knowledge, had two patient profiles in IntRlab at that time; one where he was labeled as female and one where he was labeled as male. It is unclear what other personal information LifeLabs staff could view about Mr. Viezzer, but on the evidence I can conclude that it was possible for LifeLabs staff to view his two patient profiles at the time of his visit, that they commonly check the patient’s sex in the course of confirming demographic information, and the presence of two identical profiles with different sexes could have informed the written notation.

[104]      Finally, I find that, even if it was not their normal practice, in this case LifeLabs staff either returned Mr. Viezzer’s requisition form to him after making written notations and adding the standard demographic labels to it or otherwise left it in a place where Mr. Viezzer could access and take a photo of it.

b.   Laboratory results

[105]      Mr. Viezzer alleges that he was misgendered by the Respondents on his lab reports in May and November 2019. I am not satisfied that he has established these allegations on the evidence.

[106]      As part of his medical care, Mr. Viezzer is regularly required to have his blood tested and obtain screening through the BC Cancer Agency. He testified that the requisition forms for these tests from his doctor’s office always contained a male gender marker, which is consistent with his legal identification since 2011. However, he alleges that over the years he has received reports with his test results with the marker “F” indicating female. He says the Respondents are responsible for this misgendering and the transmission of these test results to third parties, including his physician and the BC Cancer Agency, which had the effect of disclosing his transgender status without his consent.

[107]      The Respondents provided evidence which acknowledges that Mr. Viezzer’s gender was recorded in IntRlab and Excelleris as female on five occasions: November 20, 2014, January 8, 2015, February 14, 2016, May 9, 2016, and April 1, 2017.  Mr. Viezzer has provided a corresponding lab report from November 20, 2014, and a cancer screening report from February 14, 2016, which labels him as “F”. I accept, by way of background, that the Respondents misgendered Mr. Viezzer on these occasions.

                                            i.        May 2019

[108]      Turning to the timely allegations in the complaint, Mr. Viezzer has provided a cancer screening result reported on May 24, 2019. This report bears the Excelleris logo. I understand this to be the report Mr. Veizzer alleges he received on or around May 27, 2019. Although Mr. Viezzer alleges that he was misgendered on this occasion, he is correctly reported as “M” on the copy of this report that was entered into evidence before the Tribunal.

[109]      Mr. Viezzer testified that the May 24, 2019, cancer screening report did not always contain a “M” marker. Rather, he testified that on June 12, 2019, he had a doctor’s appointment to follow up on some test results. He says his doctor pulled up the results of a cancer screening on the computer for them to look at together, and he noticed that the result listed him as “F”. He says he was very distressed to see this and began crying in his doctor’s office. He testified that this was the first time he had seen an “F” marker on his medical documents since 2011.

[110]      Mr. Viezzer states that he wondered how many more results contained this information and he began his own investigation. He says he requested that his doctor’s office provide him copies of all the lab reports that they had on his file. He has presented evidence of his communications with BC Cancer Agency about this issue starting in October 2019. This correspondence indicates that BC Cancer Agency was working on amending Mr. Viezzer’s screening results to ensure he was listed as “M”. However, Mr. Viezzer testified that he has not seen evidence that these records have been corrected, and he is unsure if they have been.

[111]      I find that Mr. Viezzer has not established on the evidence that he was misgendered on the May 24, 2019, lab report. While Mr. Viezzer provided evidence corroborating that he had a doctor’s appointment on June 12, 2019, to review test results, he did not provide a copy of the original screening results containing the “F” marker which he says he viewed with his doctor. Mr. Viezzer has not provided an explanation for this omission despite his evidence that he requested all the relevant test results from his doctor’s office after this appointment in 2019.

[112]      In addition, while Mr. Viezzer testified that his doctor’s appointment on June 12, 2019, was the first time he saw an “F” marker on his medical documents since 2011, in his complaint form he alleges that he began communicating with the Medical Director at LifeLabs about this issue in May 2019. Mr. Viezzer has not explained this contradiction in his evidence.

                                           ii.        November 2019

[113]      Although Mr. Viezzer alleged in his complaint that he was misgendered again on lab reports in November 2019, he did not provide any evidence of this occurrence at the hearing. A laboratory report in evidence dated November 8, 2019, which was produced by Excelleris, contains the correct “M” gender marker.  

[114]      Mr. Viezzer’s final allegation of misgendering relates to a lab report which listed his gender as “U” instead of “M”. As evidence, Mr. Viezzer provided a November 8, 2019, cancer screening result which displays a “U” (indicating undetermined or unknown) as his gender. Mr. Viezzer says that U is not his gender, and this notation is distressing as it demonstrates an unwillingness to recognize his male identity. However, these results do not contain the Excelleris logo and there is no other evidence that the Respondents were involved in this testing or the production or transmission of the test results. I find that Mr. Viezzer has not established that the Respondents are responsible for misgendering him on this occasion.

[115]      Mr. Viezzer alleges in his closing submissions that the transmission of his test results containing the incorrect sex or gender marker to third parties, including his doctor’s office and BC Cancer Agency, had the effect of disclosing his transgender status without his consent. However, given my findings that Mr. Viezzer has not established that he was misgendered by the Respondents on lab reports in May or November 2019, I find that any transmission of results containing the incorrect sex marker would have occurred at the time of the reporting: in 2014 and 2016. I have already found that this is beyond the temporal scope of this complaint.

[116]      In summary, I have not found there is a factual basis for any timely allegations of misgendering of Mr. Viezzer on lab reports.  

c.   Complaint to LifeLabs and response

[117]      Mr. Viezzer alleges that he complained to LifeLabs about the ongoing issues of misgendering, but they did not take appropriate action to resolve the issue.

[118]      In his Complaint Form, Mr. Viezzer states that he began communicating with the Medical Director in May 2019 about lab reports being generated with his incorrect gender. His complaint says that the Medical Director told him that “Lifelabs/Excelleris historically thought they were ‘doing good by putting in the gender marker congruent with the type of testing so that the tests could be processed, even if [they] knew the gender marker wasn’t accurate to the individual’.” Mr. Viezzer alleged that he asked the Medical Director to archive the old reports so his trans status would not be revealed to anyone without his consent and so he would not be misgendered anymore. He stated that he thought the issue was resolved after that communication. However, he alleged that on November 4, 2019, he noticed he was still being misgendered in LifeLabs and Excelleris records and had another phone call with LifeLabs on this date. His complaint does not specify what was said in this conversation or who he spoke to but alleges that as a result of this phone call, his mental health declined to the point that he was hospitalized.

[119]      Mr. Viezzer’s testimony at the hearing was inconsistent with the information in his complaint regarding the timeline of these events. 

[120]      In his testimony, Mr. Viezzer stated that he could not recall when he first started communicating with LifeLabs’ Medical Director. He testified that he emailed with her back and forth over many months but no longer has access to those communication records. He said their communication culminated in a fifteen-minute telephone call on November 4, 2019, in the middle of his workday. He was confident of this date because he says he reviewed his cell phone records and recalls where he was when the phone call occurred. He did not clarify whether he had spoken to the Medical Director by telephone on more than one occasion, as indicated in his complaint.

[121]      The only other telephone communication Mr. Viezzer provided evidence about was his call to LifeLabs’ 1-800 number following the “FTM” incident in July 2019. His evidence about this call was that it was in the nature of an inquiry into LifeLabs’ policies, rather than an intention to file a complaint or request any follow-up. He did not provide evidence that he ever raised this incident with the Medical Director. 

[122]      Mr. Viezzer testified that his conversation with the Medical Director on November 4 was about his efforts to have his gender marker restored on the lab reports that had misgendered him. He said that as the phone call progressed, he felt that the Medical Director was not offering any progress towards a solution or identifying any steps regarding an investigation or resolution of the matter. He stated that it was during this phone call that the Medical Director made a statement to the effect that LifeLabs historically believed they were “doing good” by changing trans people’s gender markers to enable sex-linked tests to be processed, even if those gender markers were not accurate to the individual.

[123]      For context, I understand this alleged comment to be related to other evidence I heard, namely that historically MSP had rules that certain sex-linked tests, such as cervical cancer screening or prostate tests, were only available for individuals whose gender marker on their BC Services Card aligned with the test. For example, only those patients with “F” on their BC Services Card could receive funding for cervical screening. Correspondingly, there were validation rules in IntRlab that prevented staff from ordering these tests where a patient’s sex marker on their BC Services Card did not match MSP’s rules. Phillip Morehouse testified that LifeLabs and MSP have now removed these rules. 

[124]      Mr. Viezzer testified that towards the end of the phone call with the Medical Director, he began hyperventilating, his peripheral vision started to fade, he was shaking, and his heart rate became elevated. He said he experienced an extreme stress response and an impending sense of doom that something very bad was happening. He said that as soon as the call ended, he telephoned his work supervisor and told him that he was going to the hospital. He says that he then went the hospital to seek medical attention for extreme emotional distress.

[125]      The Respondents do not dispute that Mr. Viezzer had a telephone conversation with the Medical Director on November 4, 2019. Although both parties indicated an intention to call the Medical Director as a witness in these proceedings, she was unavailable to attend the hearing. Neither party has provided any documentary evidence regarding the communications between the Medical Director and Mr. Viezzer. 

[126]      Mr. Viezzer testified that he never heard back from LifeLabs so does not know if his records have ever been corrected by the Respondents and he does not trust that this issue would not continue to happen. However, he also did not present evidence to suggest that he requested that LifeLabs report back to him about this issue.

[127]      On cross-examination, the Respondents produced an internal record signed by Phillip Morehouse on November 13, 2019, which summarizes the efforts made to identify the instances of misgendering on Mr. Viezzer’s test results and the steps that had been and would be taken to correct these records. Specifically, it indicates that Mr. Viezzer had two patient profiles in IntRlab, one with his gender listed as “F” and one with his gender listed as “M”, and the recurring file indicating female has been deleted. However, Mr. Viezzer’s file indicating male also contained five instances where his gender was recorded as female between 2014 and 2017. The proposed solution identified was to change Mr. Viezzer’s gender from female to male in these five records in both IntRlab and Excelleris.

[128]      Phillip Morehouse testified that he believed that either the Medical Director or another LifeLabs representative followed up with Mr. Viezzer to confirm this action had been taken.

[129]      On the evidence, I am satisfied that:

a.   Mr. Viezzer brought his concerns about being misgendered on his laboratory result reports to the attention of the Respondents;

b.   The Respondents, and in particular the Medical Director, communicated directly with Mr. Viezzer about his concerns, including by telephone on November 4, 2019;

c.   Mr. Viezzer sought medical attention following his conversation with LifeLabs;  and

d.   The Respondents subsequently investigated and identified the instances in which Mr. Viezzer’s gender was incorrectly reported and amended their records to reflect Mr. Viezzer’s accurate gender.

V      DECISION

[130]       The Code prohibits discrimination in the provision of services because of personal characteristics including gender identity or expression. Section 8(1) provides:

A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public

because of the Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons.

[131]      To establish discrimination in services based on gender identity or expression, the Complainants must establish on the balance of probabilities that: (1) they have characteristics protected by the Code; (2) they experienced an adverse impact with respect to a service; and (3) the protected characteristics were a factor in the adverse impact: Moore v. British Columbia (Ministry of Education), 2012 SCC 61 at para. 33.

A.    Protected characteristics

[132]      The Complainants initially alleged the protected characteristics of sex and gender identity or expression in this complaint. At the hearing, counsel for the Complainants clarified that the ground of sex was alleged out of an abundance of caution, but they take the position that the Code’s protection for transgender and non-binary people flows from the ground of gender identity and expression.

[133]      I agree. In 2016, the Legislature added gender identity and expression as a protected characteristic in all areas under the Code, except for discrimination in wages: Human Rights Code Amendment Act, 2016. Before then, the Tribunal treated cases regarding gender identity-based discrimination as a type of sex-based discrimination: see Dawson v. Vancouver Police Board (No. 2), 2015 BCHRT 54. The Tribunal now treats sex and gender identity and expression as separate protected characteristics, and the case law to date demonstrates that the ground of gender identity and expression is applicable to transgender and non-binary individuals, without regard to sex. 

[134]      The Respondents do not dispute that all three Complainants have the protected characteristic of gender identity or expression. I accept the Complainants’ evidence about their gender identities as described in this decision. They have satisfied the first element of the Moore test. 

B.    Adverse impact based on gender identity or expression

[135]      There is no dispute that the Respondents provide a service customarily available to the public; namely laboratory testing and the transmission of test results to medical providers.

[136]      I address each Complainant’s allegations in turn.  

1.     Noa Moses

[137]      Noa alleges that LifeLabs:

a.   misgendered them when it refused to accept their non-binary gender identity and forced them to select a binary gender as a condition of providing laboratory services; and  

b.   outed them as non-binary to other patients by forcing them to have a conversation about their gender in a public space.

[138]      As I will now explain, I am satisfied that Noa has experienced an adverse impact connected to their gender identity as alleged.

[139]      Previous human rights jurisprudence has established that service providers have a positive obligation to recognize and respect people’s gender identity, including by using the affirmed pronouns of transgender individuals where that information is known and requested. In Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 257, the Tribunal stated: “For trans and gender non-conforming people, being properly ‘gendered’ by the service providers they are required to interact with is a critical part of their ability to participate with dignity in the economic, social, political and cultural life of the province: Code, s. 3”. Further, in Dawson, this Tribunal found that the Vancouver Police Board had discriminated against Ms. Dawson when they referred to her with male pronouns in a report of an occurrence, as indicated on her legal identification, despite being aware that her gender identity is female.

[140]      This principle has been affirmed in the employment context as well: EN v. Gallagher’s Bar and Lounge, 2021 HRTO 240 at para. 31; S.R. v. DLPH Hambleton Group Inc. (aka Burger King Franchise 3566), 2024 HRTO 1491. In Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137, this Tribunal explained:

[80] […] Trans employees are entitled to recognition of, and respect for, their gender identity and expression. This begins with using their names and pronouns correctly. This is not an ‘accommodation’, it is a basic obligation that every person holds towards people in their employment: BC Human Rights Tribunal v. Schrenk, 2017 SCC 62. […]

[82] 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.

[141]      These decisions describe the requirement of service providers and employers to recognize and respect people’s gender identity and demonstrate that failure to do so may be a violation of the Code.

[142]      I am satisfied that LifeLabs did not recognize or respect Noa’s gender identity. More specifically, I find that Noa experienced an adverse impact connected to their gender identity when, on October 10, 2019, LifeLabs refused to conduct laboratory testing when Noa identified their gender identity as non-binary, required them to discuss their gender identity in front of a public waiting room, and ultimately required them to identify a binary gender which did not accord with their gender identity as a precondition of providing them a service.  

[143]      The fact that Noa had not updated their gender identity on their BC Services Card does not change the fact that their gender was not “M” or “F”. Noa communicated their gender identity to LifeLabs repeatedly, stating that their gender was not “M” or “F”. LifeLabs, however, insisted that they provide incorrect gender information as a condition of service. Through this process, LifeLabs refused to recognize and respect Noa’s gender identity.

[144]      Further, I am satisfied that the public nature of this conduct contributed to the adverse impact experienced by Noa. The evidence is undisputed that the discussion took place in close proximity to other people whom Noa did not consent to disclosing their gender identity. They were not offered a private space to have this conversation away from other patients, nor were they given the option to “opt out” of this line of questioning if they wanted to receive medically necessary laboratory services. Due to the sensitive nature of this information, I find this conduct placed Noa at risk of harm and I observe that this practice could have a chilling effect on other trans or non-binary people who may be unwilling to accept this risk of public disclosure.

[145]      Non-consensual disclosure of someone’s transgender status can have serious consequences. The Tribunal has previously taken notice of the fact that “transgender and non-conforming persons face high levels of stigma and are at an increased risk of violence, harassment, social isolation and discrimination”: JY v. Mint Tanning Lounge and others, 2018 BCHRT 282 at para. 32. This reality has been acknowledged by the Supreme Court of Canada and other human rights tribunals: Hansman v. Neufeld, 2023 SCC 14 at paras. 84-89; C.D. v. Canadian Armed Forces, 2025 CHRT 20, A.B. et al v. Correctional Service of Canada, 2022 CHRT 15;E.F. v. Correctional Service of Canada, 2023 CHRT 15; XY v. Ontario (Government and Consumer Services), 2010 HRTO 1906. The Canadian Human Rights Tribunal acknowledged that information about a person’s transgender status is “so sensitive that its dissemination could be an affront to the Complainant’s dignity”, and there is a real and substantial risk of hardship if that information is disclosed: E.F. at para. 24; C.D. at para. 13.  

[146]      On this issue, I observe that PLMS’s 2019 guidance document, which was put into evidence by the Respondents, recommends that laboratories revise intake procedures so that discussions about gender identity are conducted in a private, non-intrusive manner, and that staff have specific training to ensure such interactions are culturally safe and gender-affirming.

[147]      I am satisfied that Noa experienced a further adverse impact when LifeLabs staff misgendered them by writing a binary gender marker and an incorrect pronoun on their requisition form, despite Noa repeatedly informing staff that their gender identity is non-binary.

[148]      The Respondents advanced two arguments about why Noa did not establish the elements of the complainant’s case, neither of which I accept.

[149]      First, the Respondents argue that there was no adverse impact because it was within Noa’s control to update their BC Services Card with an “X” marker to avoid this experience. The Respondents rely on Sheridan v. Sanctuary Investments Ltd. (No. 3), 1999 CanLII 35172 (BC HRT), which they argue is analogous.

[150]      Sheridan involved a complaint filed by a transgender woman against a bar owner alleging two incidents of discrimination. The first allegation, which the Tribunal found to be discriminatory, involved denying the complainant access to the women’s washroom. The second allegation, which the Tribunal dismissed, arose from the respondent refusing the complainant entry when her Driver’s License displayed a gender identity and gendered name that was different from the gender expressed through her physical appearance. The Tribunal found the respondent’s policy of requiring identification and refusing to admit individuals whose gender identity and gender expression did not match to be reasonable and therefore found that the policy cannot be said to have had an adverse effect on the complainant.

[151]      I am not satisfied that Sheridan is determinative of this case. I begin by observing that Sheridan is 27 years old and pre-dates Dawson, where a different conclusion was reached regarding the requirement to update government-issued identification to have one’s gender identity respected. The Tribunal’s conclusion on this issue in Sheridan is also premised on findings that the complainant had sufficient time to update her identification prior to the respondent’s denial of service and her failure to do so had no nexus to her trans status. On the facts before me, I find the current circumstances are distinguishable.

[152]      First, the complainant in Sheridan’s gender identity was female, not non-binary. I heard evidence that updating one’s gender on an identity card to an “X” marker carries particular risks that changing a “M” to “F”, or vise versa, does not carry. Noa testified regarding potential issues people can face for having an “X” marker on their identification, including accepting that their BC Services Card may not be accepted as valid identification in some places. I heard evidence that changing to an “X” marker requires a person to sign a waiver accepting that this may occur. Further, Noa explained the reasons they had not updated their BC Services Card at the material time of the complaint which were connected to their gender identity. Specifically, Noa was reluctant to adopt the “X” marker because it would require them to out themself anytime they had to use the card, and because of the potential for discrimination for having an “X” marker.  

[153]      Similarly, Snow stated that he too was reluctant to update his gender marker to “X” because he did not want to always have to explain himself and educate others about what it meant. He was also concerned about changes to the political landscape in Canada, as well as in the United States, which could impact the treatment of trans people. He stated that having an “X” mark on his identification would impact his sense of safety in the world. In this way, the delay in updating his gender marker was also connected to his gender identity.

[154]      I also heard evidence that additional barriers, such as the cost, the time involved, the legal complexity, and fear of being placed at risk of harm, can impact if and when some trans and non-binary people update their gender identity on their legal identification. Dr. Saewyc referred to a 2019 study of more than 1500 trans and non-binary youth, which found that 73% of respondents did not have legal identification containing their correct gender identity, in part because of these barriers.

[155]      For these reasons I am satisfied by Sheridan is distinguishable, and as such I reject the argument that the availability of the “X” option undermines Noa’s argument that LifeLabs’ refusal to acknowledge and accept their gender identity satisfies the elements of the complainant’s case.  

[156]      I am also not persuaded by the Respondents’ second argument that there was no adverse impact to Noa because they were treated the same as anyone else who did not have a BC Services Card and was required to provide the information necessary to verify their enrollment in the MSP. The Tribunal has held that policies which are neutral for cis-gender people, but have an adverse effect on transgender people, are discriminatory: Sheridan at para. 102. This legal principle is not novel to complaints involving transgender people but is a long-recognized form of discrimination: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 [Bombardier] at para. 32. I am satisfied that in these circumstances, the Respondents’ policy and practice had a differential impact on Noa because of their gender identity.

2.     Devan Snow

[157]      Snow alleges that LifeLabs:

a.   misgendered them when it refused to update their gender identity when they were seeking laboratory services and instead proceeded to use the sex assigned to Snow at birth;

b.   denied their request to provide a reference range with their lab results other than that associated with their sex assigned at birth; and  

c.   outed them as transgender to other patients by not offering a private space to discuss their gender identity.

[158]      As I explain below, I am satisfied that Snow has made out the misgendering allegations, but not the allegation about reference ranges. I further find that the public nature of the conduct exacerbated the adverse impact.

a.   Misgendering

[159]      Although his allegation on this point has changed over time, I accept that Snow asked LifeLabs staff to update his gender marker as he did not identify with the marker listed on his government-issued identification or his patient profile in IntRlab. The Respondents do not dispute that he did so and provided evidence that they cannot update a patient’s demographic information at a PSC, which is consistent with the experience described by Snow. LifeLabs declined to update Snow’s gender identity in their system and instead affixed a label to his requestion form using the gender on his identification. In this way, LifeLabs refused to recognize and respect Snow’s gender identity even though he communicated it to them. I am satisfied that this conduct is misgendering and is an adverse impact based on Snow’s gender identity or expression within the meaning of the Code.

[160]      The Respondents argue that Snow has not proven that they were misgendered by LifeLabs because: (1) Snow could not say for sure what sex marker their doctor had provided on the laboratory requisition form; and (2) Snow did not know whether their doctor’s EMR could receive transmission of their lab report if the demographic data did not match the information in their doctor’s records. I am not persuaded that these gaps in Snow’s evidence impact my finding of adverse impact. On the first argument, I find that regardless of whether Snow’s doctor correctly gendered them on the laboratory requisition form, Snow informed LifeLabs of how they wished to be referred to and LifeLabs staff declined to do so. I consider the Respondents’ second argument with respect to the necessity of information matching for transmission purposes and relying on the information contained on the BC Services Card as the “source of truth” in the justification analysis below.

[161]      Snow was not offered a private space to have the conversation about their gender identity but was instead required to discuss their gender identity in a public setting. I accept Snow’s evidence that there were other patients present who could reasonably overhear their conversation with LifeLabs staff. Similar to my findings with Noa, I am satisfied that this exacerbated the impact of the Respondents’ conduct.

b.   Incorrect reference ranges

[162]      I accept that there are circumstances where providing only one reference range on lab reports when a health care provider has indicated that both ranges are medically appropriate could amount to adverse treatment. Dr. Saewyc explained that for individuals receiving gender affirming care, selecting a reference range based on the sex assigned at birth may not be medically appropriate. She stated that providing only one potentially inaccurate test reference range for key renal and cardiac function blood tests, or for hormone levels, can potentially affect proper health care for trans and non-binary people receiving gender affirming care. Inaccurate ranges may lead to false alerts or to a lack of an alert on the test results, leading to inaccurate or delayed care for certain medical conditions.

[163]      However, I do not find on the evidence before me that Snow experienced an adverse impact when he was not provided a different reference range on his lab report following his October 2019 visit to LifeLabs. This is because the Complainants have not established that allowing patients to request specific reference ranges is part of the service regularly offered by LifeLabs, or that it would be appropriate for them to do so.

[164]      Snow’s evidence was that they – not their doctor – asked LifeLabs to provide either the male reference range (as alleged in the complaint) or both reference ranges (as alleged in their testimony) at the time of testing. They have not provided an explanation for the inconsistency of this allegation in terms of which reference range they requested. Further, all the information before me suggests that it is the referring health care provider who is responsible for conveying the medically necessary information for laboratories to conduct their testing and provide results by way of a laboratory requestion form. Dr. Saewyc discussed a recommendation that clinicians be able to request the reference ranges they deem appropriate for the specific care their patients are receiving rather than relying on reference ranges based on assumptions about sex. However, there is no information before me to support that patients are or should be permitted to request additional or different testing and interpretive tools than what their doctors have communicated through the laboratory requisition form. Rather, I agree with the Respondents that this matter falls within the purview of medical judgement exercised by health care professionals.

[165]      I acknowledge that Snow described experiencing anxiety upon receiving their lab test results which contained alerts because the inappropriate reference range was provided, and that they did their own online research to address their concerns as there was a delay to see their doctor. However, Snow has not provided any documentary evidence that the reference range provided was not medically appropriate or that abnormal results were flagged, although no reason was provided for the absence of this documentation which they stated they had access to through the MyHealthBC portal. Given the inconsistency in Snow’s evidence about whether they requested male or both male and female reference ranges, I am unable to conclude that receiving a lab report with alerts on it amounts to an adverse impact, as it is unclear on the evidence whether alerts would be present regardless of the reference ranges provided. Further, I heard evidence that the lab reports are intended to be interpreted by medical professionals, that the CPSBC requires doctors to follow up on any laboratory test that they have ordered, and that Snow’s doctor would have had access to the full range of reference ranges on LifeLabs’ website, by calling LifeLabs to speak to a pathologist, or by engaging a specialist.

3.     Vincent Viezzer

[166]      Mr. Viezzer alleges that:

a.   LifeLabs staff wrote “FTM” on his lab requisition form, which he says is a transphobic slur and outed him as transgender; and

b.   he complained to the Respondents about being misgendered on lab reports, but they did not take appropriate action to resolve the issue. He alleges LifeLabs’ Medical Director admitted to overwriting his sex marker for billing purposes, and told him that by doing so, the Respondents thought they were “doing good”. 

[167]      As I explain below, I am satisfied that Mr. Viezzer has made out the first allegation, but not the second.

a. Offensive notation

[168]      I find that Mr. Viezzer experienced an adverse impact based on his gender identity when LifeLabs staff wrote “FTM” on his lab requisition form in July 2019. 

[169]      I am satisfied that, although the “FTM” allegation or comment arises from a single incident, taking in account the entirety of the circumstances, it amounts to a violation of the Code.

[170]      To assess whether a single comment could constitute a contravention of the Code, the Tribunal takes all the circumstances into account. Factors to consider include:

the egregiousness or virulence of the comment, the nature of the relationship between the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against.

Pardo v. School District No. 24, 2003 BCHRT 71 at para. 12

[171]      The Respondents say that one isolated use of this term is not sufficiently egregious or virulent to rise to the level of discrimination. They rely on a decision of the Ontario Human Rights Tribunal where it declined to find that the single use of a slang or derogatory term for a Portuguese person in the workplace amounted to discrimination: Pereira v. Humber River Regional Hospital, 2015 HRTO 1340.

[172]      In support of this argument, the Respondents point to other instances where these letters were used to describe transgender people in official documentation, including an older decision of this Tribunal: Waters v. BC Medical Services Plan, 2003 BCHRT 13 at para. 2. In addition, the Respondents point to the use of this acronym in the Ontario Human Rights Commission’s April 14, 2014, publication “Policy on preventing discrimination because of gender identity and gender expression.”

[173]      On their face, the initials “FTM” may not appear to be particularly egregious or virulent. I understand these letters to stand for “female to male” and are intended to describe an individual who has transitioned from one binary sex or gender to another. However, I also understand this to be an oversimplified and inaccurate way to describe some peoples’ lived transgender experience.

[174]      Mr. Viezzer experienced “FTM” as a transphobic slur and felt it reduced him to his anatomy and invalidated his masculinity. He explained that this term was not appropriate for him as his gender identity has never been female, as the comment suggests, and by placing emphasis on the female as the first word it undermines and erases his masculine identity. Mr. Viezzer’s evidence of his reaction upon seeing the notation is telling of its impact: he immediately took a sharpie and scribbled it out. He described having a visceral reaction in his body and feeling very shaken. He left LifeLabs without having his blood tested that day.

[175]      Dr. Saewyc was questioned about the use of “FTM” during the hearing. She acknowledged that while this term was still in use in 2019, it was far less commonly endorsed amongst trans youth surveyed than it was even five years earlier. She stated that its appropriateness will depend on the person it is being applied to, as a key element of gender inclusive care involves asking and listening to the wishes of the individual patient.

[176]      On the information before me, I find that while the term “FTM” may still be used in some settings, it was deeply offensive when used to describe Mr. Viezzer. There is no requirement that something be understood as universally offensive for it to have a discriminatory impact. Nor is there a requirement for the person using the terminology to be motivated by malice or other ill intent: Stewart v. Elk Valley Coal, 2017 SCC 30 at para. 24;  Bombardier at para. 40; British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 88.  The focus of human rights law is the impact on the individual, which in this case was significant.

[177]      Next, I turn to the relationship between the parties, which is that of a service provider and an intended recipient of those services. No information about the individual who wrote the notations has been provided, but presumably there was no previous relationship between them and Mr. Viezzer. This was a brief and transient relationship.

[178]      The context in which the comment was written is an important factor in this analysis, as I heard evidence that trans people are particularly vulnerable to discrimination in health care settings. Here, the notation was written on a document for use within the laboratory and was not public facing. However, no further explanation has been provided as to why the notation was written or whether it was in any way necessary to the provision of the services sought by Mr. Viezzer. There was no incongruence between Mr. Viezzer’s legal identification and his requisition form which required the notation for identification purposes. The Respondents do not argue, and there is no evidence to support, that such a notation was medically relevant for the provision of laboratory services. Rather, based on the information before me, it appears to have been, at a minimum, an unnecessary and non-consensual disclosure of Mr. Viezzer’s transgender status.

[179]      The Respondents’ position with respect to Noa and Snow is that their gender identity would be respected if they updated their legal identification. However, Mr. Viezzer had taken all the appropriate steps to update his legal gender marker so it could not be questioned, and it still was not accepted at face value. After “FTM” was written on Mr. Viezzer’s laboratory requisition form, he was faced with the prospect of disclosing his transgender status, against his wishes, to every person who subsequently had access to his laboratory requisition as a condition of accessing the Respondents’ service. For Mr. Viezzer, this was untenable and created a barrier to him accessing the Respondents’ service.  

[180]      Dr. Saewyc provided evidence about the barriers created by unnecessary disclosure of someone’s trans status in health care settings. She explained that in medical settings, “health care providers may disclose transgender status to others in the clinical setting or to other providers without permission, or in ways that can be disrespectful and lead to negative reactions or harmful consequences for trans people.” Further, she commented on the risk of “lack of education and knowledge of health care providers about trans and non-binary people’s health, which results in them repeatedly having to provide education to the health care providers [citations omitted], or being denied care altogether.”

[181]      While there may be circumstances in medical settings where someone’s transgender status is relevant clinical information, that does not appear to have been the case here.    

[182]      Moving to the question of an apology, there is no evidence before me that the Respondents offered Mr. Viezzer an apology for this conduct.

[183]      The final Pardo consideration is whether the recipient of the comment is a member of a group that has historically been discriminated against. There is no question that Mr. Viezzer, the recipient of this comment, is a member of such a group.  The unique position of disadvantage for transgender people within Canadian society has been repeatedly recognized by this Tribunal and the Supreme Court of Canada: Hansman at paras. 84-86; Oger (No. 7) at para. 61; Nixon v. Vancouver Rape Relief Society (No. 2), 2002 BCHRT 1 at paras. 136-37. It is widely recognized that the provision of health services is an area rife with barriers for transgender and non-binary people, including those described in Dr. Saewyc’s expert evidence. 

[184]      On a balance of the information before me, I am satisfied that the notation “FTM”, in this context, is sufficiently serious to constitute a contravention of the Code.

b.   Complaint to LifeLabs

[185]      I reach a different conclusion with respect to Mr. Viezzer’s allegation that the Respondents did not appropriately respond to his complaint about the misgendering on his lab reports, and that this amounted to further discrimination under the Code.

[186]      As discussed above, I accept that Mr. Viezzer has established that misgendering occurred, even though this conduct is beyond the scope of his complaint. The Respondents’ evidence demonstrates that Mr. Viezzer was misgendered on his lab reports as recorded in Excelleris and IntRlab on at least five occasions between November 20, 2014, and April 1, 2017. The Complainants’ evidence supports that on two of these occasions, Mr. Viezzer’s gender appeared as “F” on his test results.

[187]      I also accept that Mr. Viezzer brought a complaint about this conduct forward to the Respondents and had at least one conversation with the Medical Director about it on or around November 4, 2019.

[188]      Mr. Viezzer’s complaint alleges that he brought his concerns about misgendering on his lab reports forward to the Respondents and requested that his old reports be archived so his trans status would not be revealed to anyone without his consent and this would not continue to happen. He understood the matter to be resolved; however, he later noticed that the misgendering was still occurring and he had a further conversation with LifeLabs in which he again requested that it be resolved. He says that the Medical Director’s response to his concerns impacted his mental health. 

[189]      In his closing submissions, he further alleges that the Respondents’ response to his complaint was unreasonable because they did not investigate how or why the misgendering occurred, take steps to ensure that it did not happen again for Mr. Viezzer or anyone else, or report back to him about whether the issue was resolved. I observe that this submission appears to expand the scope of Mr. Viezzer’s allegations in the Complaint Form.

[190]      In any event, the evidence demonstrates that the Respondents did investigate Mr. Viezzer’s concerns. Specifically, the evidence establishes that within 10 days of the November 4, 2019, telephone call, the Respondents had investigated and identified all the instances of misgendering in Mr. Viezzer’s records, and a plan was established to correct them and delete the duplicate client profile that listed Mr. Viezzer’s sex incorrectly. There is no evidence before me that Mr. Viezzer requested an investigation of a different nature. I find the evidence demonstrates that the Respondents treated the complaint seriously and diligently acted to resolve the issue. Importantly, there is no evidence that Mr. Viezzer continued to be misgendered following these steps; rather, the evidence of the lab reports produced by the Respondents following this date all list Mr. Viezzer’s gender as male.

[191]      Further, Mr. Viezzer’s evidence, though not supported by documentation, was that he was engaged in ongoing email communications with the Medical Director about his concerns. It is not clear when those communications ceased, but there is no evidence before me that Mr. Viezzer requested an update that was not provided.

[192]      Based on these considerations, I find that the Respondents’ response to his complaint was reasonable.  

[193]      To the extent that Mr. Viezzer alleges that he experienced an adverse impact in his phone call with the Medical Director where he raised his concerns, I am not satisfied that he has identified any specific conduct by the Respondents that amounts to a timely violation of the Code. I accept on the evidence that the Medical Director made a statement to the effect that LifeLabs had historically changed trans patients’ gender markers on sex-linked tests to allow them to be processed, and by doing so, the Respondents thought they were “doing good”. The Complainants characterize this as an admission that LifeLabs was manually changing Mr. Viezzer’s gender marker. It is undisputed that the Respondents misgendered Mr. Viezzer on various occasions between 2014 and 2017, and Mr. Viezzer had raised that very concern with the Medical Director, so such an admission would be in line with that evidence. However, to the extent that the Medical Director admitted to discriminatory conduct (misgendering), the evidence does not establish that the misgendering occurred within the timeframe of this complaint.

[194]      Mr. Viezzer had a serious reaction to this conversation, which he explained was based on his impression that the Respondents would not be taking steps to resolve the issue of misgendering. However, there is no evidence before me of what specific words were said to create this impression, and the other evidence showing that timely steps were taken by LifeLabs does not support a finding that the Medical Director would suggest that nothing would be done to resolve his concerns. Mr. Viezzer has not established that the Respondents’ conduct in this telephone call breached the Code.

C.    Respondents’ justification defence

[195]      The Respondents say they have a bona fide and reasonable justification for their policies and practices related to gender markers.

[196]      I preface this section with the observation that the Respondents’ submissions on the justification defence were relatively brief. While the Respondents put forth relevant evidence, their submissions on how the evidence relates to or satisfies their justification defence were limited. Throughout this section I have explained my understanding of their arguments based on the information before me in the absence of more fulsome submissions.

[197]      To succeed in their justification defence, the Respondents must establish on a balance of probabilities:

a.   A valid purpose: they adopted a standard for a purpose rationally connected to the function being performed by the Respondents.

b.    Good faith: they adopted the standard in an honest and good faith belief that the standard was necessary to fulfil its valid purpose.

c.   Reasonable necessity and accommodation: the standard was reasonably necessary to accomplish its purpose, and the Respondents fulfilled their duty to accommodate the Complainants to the point of undue hardship.

British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), 1999 CanLII 652 (SCC) [Meiorin]; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) [Grismer] at para. 20.

[198]      The Complainants argue that the Grismer test is inappropriate in these circumstances because this case is not about a single or group of identifiable rules or standards that could ever be shown to be rationally connected or necessary to provide laboratory testing services. Rather, they say it is about a constellation of interconnected discriminatory conduct with no foundation in any rule or standard. The Complainants say the Respondents have not identified any rule or standard which could explain any of their conduct.

[199]      I am not persuaded by the Complainants’ argument that Grismer is not the appropriate framework in these circumstances.

[200]      I understand that the Respondents advance a justification defence for some, but not all, of the allegations in the complaint. Namely, I understand the Respondents’ justification defence to relate to my findings of discrimination related to Noa and Snow not having their gender identity accepted when they visited LifeLabs PSCs in 2019.

[201]      I do not understand the Respondents to argue that the addition of the notation “FTM” to Mr. Viezzer’s laboratory requisition form, or the requirement that Noa and Snow have conversations with LifeLabs about their gender identity in a public space, is reasonably justified. The Respondents have not explained how the justification defence applies to these aspects of their conduct.

[202]      In their submissions, the Respondents have not identified the standard at issue for the purposes of the Grismer test. However, I understand from the Respondents’ arguments and the evidence of their policies and procedures that the standard is that a patient must present demographic information, including a sex or gender marker, that matches the information on their BC Services Card, in order to access the Respondents’ services.  

[203]      The Respondents say the standard is required by their regulatory and accreditation framework and their contract with the Ministry, and is also necessary for billing, limiting laboratory errors, and ensuring results can be communicated across various electronic records systems.

[204]      For the following reasons, I find the Respondents’ conduct is not justified.

1.     Did the Respondents adopt the standard for a purpose or goal that is rationally connected to the function they performed?

[205]      The Respondents say they were acting for a purpose rationally connected to their function. They say they must ensure customers are enrolled with MSP for billing purposes and confirm patient identity to accurately report results. This is clearly stated in their Patient Identification Policy, which states:

Accurate patient identification is critical to the primary sample collection process ultimately ensuring that the right result is provided for the right patient to support accurate diagnosis and treatment of patients.

[206]      Further, the Respondents say the IntRlab system is purposefully designed to require data matching to ensure that the results are accepted by the many downstream systems that deliver the results to the patient, the ordering physicians, and to PLIS.

[207]      I am satisfied that the Respondents adopted the standard for a purpose rationally connected to the function they perform (the provision of laboratory testing services), that is to ensure patients are enrolled in MSP and to ensure accuracy in reports.

2.     Was the standard created in good faith, in the belief that it was necessary for the fulfillment of the Respondents’ goals?

[208]      LifeLabs says it was acting honestly and in good faith, as it was acting in accordance with its understanding of its statutory and regulatory duties in the provision of laboratory services. It further says that the remedial measures it has already taken in recent years to improve the service experience for transgender patients constitute evidence of good faith.

[209]      I am satisfied that the standard was created in good faith, in the belief that it was necessary for the fulfilment of the Respondents’ goals.

3.     Was the standard reasonably necessary to accomplish its purpose or goal? Could the Respondents have accommodated the Complainants without incurring undue hardship?

[210]      The Respondents say the standard is reasonably necessary to achieve their purpose and that they could not accommodate the Complainants without undue hardship.

[211]      I understand the Respondents’ argument to be that accommodating the Complainants’ request to have the Respondents recognize their gender identity without updating their BC Services Cards would cause them undue hardship because: it would interfere with the Respondents’ ability to meet their regulatory, accreditation, and contractual requirements; would lead to more laboratory and reporting errors; and, the current technology cannot be updated to meet the requested changes without creating hardship and causing problems with how the Respondents communicate laboratory result reports with third parties. In other words, the Respondents argue that there is nothing else they could reasonably or practically do in the circumstances to avoid the negative impact on the Complainants.

[212]      The Complainants disagree and say the Respondents are overstating their regulatory obligations. They say the Respondents’ practices are primarily meant to ensure billing, which is not a reasonable basis to discriminate. The Complainants point to the expert report of Dr. Saewyc to demonstrate that alternative approaches are available which align with the Respondents’ human rights obligations.

[213]      Next, I will review the Respondents’ evidence with respect to their regulatory, accreditation, and contractual requirements and the technical constraints which they say prevent them from recognizing patients’ gender identities that do not match the information on the BC Services Card. I also consider the Respondents’ position that any accommodation of the Complainants’ gender identity (in the absence of matching BC Services Cards) would cause undue hardship.

[214]      As I will explain below, the Respondents have not satisfied me that their conduct towards the Complainants is justified because of their external obligations or their system’s technological constraints. I am not persuaded that the Respondents considered all reasonable and practical options to accommodate the Complainants, and they could not have done anything further without experiencing undue hardship.

a.   LifeLab’s regulatory, accreditation, and contractual requirements

[215]      I understand the Respondents’ position to be that it would be legally impermissible for them to use or recognize a sex or gender identity marker that does not match the information on a patient’s BC Services Card. They say this is based on the requirements of the Laboratory Services Regulations, the accreditation standards set out by the Diagnostic Accreditation Program, and their contractual obligations to the Ministry.

                                            i.        Laboratory Services Regulations

[216]      There is no dispute that the Laboratory Services Regulations require laboratories to take reasonable steps to confirm a patient’s identity, prior to providing services, in order to verify their enrolment in MSP. Section 18 of the Laboratory Services Regulations provides for different identification requirements depending on what documentation a patient presents when accessing services. For example, a patient can either present: a) their BC Services Card, or b) their PHN along with one piece of photo identification or two pieces of identification showing their “legal name” [a) and b) together, Legal Identification Requirements]. If these options are not available, a patient must provide: c) “the information necessary to verify whether the person is or is not a beneficiary, including the person’s legal name, date of birth, address and gender.”

[217]      Once LifeLabs has collected this information, s. 18(1)(b) and (c) require LifeLabs to submit it to the Medical Services Commission which will confirm whether the patient is an MSP beneficiary. This must be done “before providing benefits to a person”; which in this context, requires it to be done prior to providing laboratory services. I understand that this process is automated: as patient information is entered into IntRlabs, LARS sends it to MSP for billing purposes.

[218]      I accept that the Respondents are not required to provide their laboratory services for free, and confirming patients’ eligibility for MSP is a reasonable requirement to ensure they are paid for their services in the context of a public health system. By law, they must do this by ensuring the patient has presented the Legal Identification Requirements, or where they have not, that the patient provides information to confirm their identity. I accept that where a patient has not provided the Legal Identification Requirements, LifeLabs must ask questions to obtain the information necessary to verify whether the person is or is not a beneficiary with MSP, including about a patient’s gender.

[219]      However, I find that while the Respondents are legally required to confirm a patient’s identity to ensure MSP eligibility, the Laboratory Services Regulations do not require them, once MSP eligibility has been confirmed, to only rely on that same demographic information or reject changes to a patient’s demographic information for the provision of laboratory services to the patient. In other words, the Laboratory Services Regulations do not require the Respondents, in the provision of laboratory services once MSP eligibility has been confirmed, to use only the demographic information found on the BC Services Card in their dealings with the patient and in their recording keeping about the patient.

[220]      The Respondents have nevertheless chosen to exclusively use the BC Services Card as the “source of truth” for a patient’s demographic information throughout their provision of laboratory services. This is confirmed in the Respondents’ “New Patient and Accession Entry Procedure – IntRlab” document which states: “Patient demographic updates MUST match BC Services Card” and instructs staff to “enter patient’s gender as it appears on their BC Services Card.” Norma Neale confirmed this practice in her testimony.

[221]      I find that while the Respondents have developed internal policies and procedures that treat the BC Services Card as the “source of truth” with respect to sex and gender information throughout the provision of their services, they have not established that these policies and procedures themselves are required by the Laboratory Services Regulations.

[222]      Further, I do not find that this legislative requirement justifies the adverse impact experienced by Noa or Snow, as both had provided sufficient confirmation of their identification in accordance with the Laboratory Services Regulations at the time they were misgendered by the Respondents.

[223]      With respect to Noa, the evidence indicates that while they did not have their BC Services card with them, they did ultimately provide their PHN and other provincial photo identification. LifeLabs staff confirmed that Noa had presented identification in a hand-written note on their lab requisition form. According to the s. 18(2)(b)(i) of the Laboratory Services Regulations, this appears to have been sufficient to confirm their identity for MSP billing purposes. I am therefore not persuaded that the Laboratory Services Regulations required the staff at LifeLabs to compel Noa to verbally, or in writing, select a binary gender identity in order to confirm their enrollment in MSP or provide them a service.

[224]      While the Respondents say confirming Noa’s gender was necessary pursuant to s. 18(2)(c), the language of this provision clearly states that asking a patient to provide demographic information is only necessary if the Legal Identification Requirements were not available, which was not the case here. 

[225]      In the case of Snow, there is no question that they provided sufficient information for identification purposes. Their evidence was that they had provided their Driver’s License which contained their deadname and incorrect gender identity; however, they do not know what was on the laboratory requisition form. Snow volunteered new information about their gender identity to ensure that they were appropriately addressed throughout their service interaction, including in LifeLabs’ records, but the Respondents did not have a mechanism to accept that information and update their patient profile at the PSC. This was confirmed by Norma Neale, who stated that LifeLabs staff are not able to make changes to someone’s gender or sex information at the PSC even if they present with other evidence to support their request. However, it does not appear that the Laboratory Services Regulations, on their own, prevented the Respondents from doing so.

[226]      In summary, I find that the Respondents’ discriminatory conduct with respect to Noa and Snow is not justified based on the requirements of the Laboratory Services Regulations.  

                                           ii.        Diagnostic Accreditation Program

[227]      I now consider whether the Respondents’ accreditation requirements justify their conduct towards Noa and Snow.

[228]      I accept that the Respondents must meet the DAP Standards which are administered by the CPSBC. The Respondents say that accreditation is mandatory as a diagnostic facility, and failure to meet these standards could result in the suspension or revocation of LifeLabs’ accreditation status, which would prevent it from operating.

[229]      However, as mentioned earlier, the Respondents have not put the DAP Standards into evidence, and the only information about them came through the testimony of Phillip Morehouse.  I accept his evidence. He testified that the DAP requires that lab result reports contain the patient’s name, personal health number, date of birth, age, sex, the ordering practitioner and their contact information as well as any “copy to” physicians, the tests that were ordered, the results of those tests, any appropriate flags if the results are normal or abnormal, the relevant reference intervals, and dates and location of testing.

[230]      The Respondents have not put forward any arguments about how the DAP Standards impact the standard set for patients regarding the sex on their BC Services Cards. Phillip Morehouse did not specify, and there is no other evidence before me to support, that the sex provided on the lab result reports must always match those found on a patient’s BC Services Card or contained in other health records. Recalling that the sex information found on a BC Services Card can be amended, including to an “X” marker, and the evidence that sometimes LifeLabs enters “U” in the sex field of IntRlab, I also cannot infer that the sex found on lab reports must always match a patient’s biological sex.

[231]      The Respondents say that LifeLabs is also voluntarily accredited by Accreditation Canada Diagnostics and the DAP to international standard ISO 151189; however, they have not put forward any evidence or argument about how this created requirements or obligations that impacted the standard it imposes on patients regarding the gender on their BC Services Card.

                                         iii.        Contract with the Ministry of Health

[232]      I accept that the Respondents also operate within a contractual arrangement with the Ministry. However, to the extent the Respondents suggest that the standard is required by the Ministry, they have not established that on the evidence. Phillip Morehouse made a brief reference to “policies from the client registry around traceability of information” as the basis for LifeLabs’ practice of using the BC Services Card as the source of truth for a patient’s sex marker, such as where a different sex or gender is indicated by the patient or on the laboratory requestion form. However, these policies are not in evidence, and there is no other information before me about what the client registry is used for, or who has access to it and for what purpose. 

[233]      If there are policies from the Ministry that the Respondents must adhere to in their operations, there is no evidence before me about what those policies were and how they relate to the standard at issue.

[234]      The Respondents also say that PLMS, which I understand to be part of the Ministry of Health and responsible for administering the Laboratory Services Act and Regulations, provides laboratories in British Columbia with advice and guidelines, deal with the billing aspects of the Laboratory Services Regulations, and administer the Standard Out-Patient Laboratory requestion form. The Respondents did not put forward any evidence about the nature, if any, of the requirements imposed by PLMS on LifeLabs, other than with respect to the standardized laboratory requisition form.

[235]      I heard evidence that LifeLabs must follow the Standard Out-Patient Laboratory Requisition form, which was developed by the Ministry and administered by PLMS, and only provides two options for sex: “F” and “M”. While I accept the Respondents must generally follow this format and have created their own requisition form mirroring its content, the evidence before me does not support that LifeLabs only accepts requisition forms that have a M or F in the sex field. To the contrary, Phillip Morehouse testified that if a patient’s gender is unknown, or if they present a BC Services Card with an “X” marker, LifeLabs’ practice is to enter “U” for unknown in IntRlab. The Respondents have not explained how the content of the requestion form impacted their ability to accommodate the Complainants in this case.

[236]      The Respondents have not put forward any evidence or arguments about any obligations imposed on them by PLMS with respect to the standard at issue in this complaint.

[237]      In sum, the Respondents have not persuaded me that their regulatory, accreditation, or contractual obligations require them to impose the standard or created a barrier to accommodating the Complainants.

b. Technology constraints

[238]      I understand the Respondents to further argue that the standard is necessitated by technology constraints inherent in their LIS IntRlab system. They say that changing their system would create undue hardship.

[239]      The Respondents’ LIS IntRlab is a comprehensive system that is used for multiple purposes. As it is currently configurated, the demographic information used in the PSCs (for example, to create demographic labels adhered to requisition forms and test samples) is the same as the information transmitted to MSP for billing through LARS, as well as what is reproduced on the final lab test result reports which are transmitted to downstream systems through Rover. As a result, if the information transmitted to MSP must match what is on the BC Services card, that same information is used throughout IntRlabs.

[240]      I understand the Respondents’ position to be that IntRlabs must continue to operate in this way for three main reasons: 1) to reduce the potential for error in patient identification; 2) because changing the system would be time consuming and onerous; and 3) to ensure that lab reports can be transmitted to downstream systems.

[241]      First, the Respondents say that this automation is necessary in order to reduce laboratory errors. Dr. Ross testified that IntRlab is purposefully designed to maximize automation in order to mitigate the potential for error. She stated that more than 80% of errors in the laboratory occur at intake due to misidentification of patients; for example, using the incorrect PHN or incorrect name. Under the current procedure, staff at intake are required to conduct an “audit” of the information in IntRlab as compared to the laboratory requisition, including by confirming that demographic information, specifically patient name, date of birth, PHN, and gender, match. In the event of a non-match of demographic information, IntRlab is designed to reject the information and verification is required (such as by calling the ordering physician). The Respondents say the essential compromise of an automated system is that it is not adaptable to unexpected inputs and slow to overcome issues related to non-matching data.

[242]      The importance of limiting laboratory errors is not in dispute. However, the Respondents have not established on the evidence that confirming that a patient’s gender matches the sex marker on their BC Services card is necessary to achieve this goal. Further, it appears that the Respondents’ current practice involves some manual workarounds to the automated procedure (i.e. calling a doctor to verify information), and there is already an accepted input of “U” in IntRlab’s sex field where that information is unknown, so I am not persuaded that there are no reasonable or practical accommodations available to address discrepancies around sex or gender information. 

[243]      Second, the Respondents say that requiring them to replace or re-program the IntRlab system would constitute undue hardship because of the time and effort it would take. Stephan Mueller explained that the software uses very old architecture which can make changes more time consuming and complex. Dr. Ross also testified that changes must be made incrementally, as they can have unexpected downstream implications.

[244]      In response to this complaint the Respondents have contemplated one potential update to address the scenarios where a patient’s sex does not match their gender identity; specifically, adding a new field to IntRlab for gender as distinct from sex. This would allow the Respondents to collect sex information, as it appears on the BC Services card, for billing purposes but also collect gender information to be used in the provision of services to acknowledge and respect the gender identity of patients whose gender does not align with the BC Services card. However, Stephen Mueller explained that even something as seemingly small as adding a new field is not trivial; it would mean changes to the “business logic” throughout the system, multiple changes across the applications, and significant regression testing. He stated that these significant efforts would easily take over a year. The Respondents have not put forward evidence about the estimated costs that would be involved in making such changes, nor have they argued that it would cause undue financial hardship. To that end, I have no evidence before me regarding the Respondents’ overall budget, spending priorities, access to funds for systemic upgrades, or the impact any such expenditure would have on its overall operations.

[245]      Third, the Respondents say that the data inputs sent through IntRlab to Rover for distribution to downstream systems, such as MSP, the EMRs used by doctors’ offices, and PLIS, must use identical data inputs or else there could be compatibility issues in the transmission of reports.

[246]      I understand the Respondents’ position to be that everything must match between LifeLabs and the downstream users for the successful transmission of reports, including the fields of data being transmitted and the specific patient demographic information entered into those fields.

[247]      With respect to data fields, Stephan Mueller explained that if new data fields were added to IntRlab, they could not be transmitted to downstream users unless they were supported by those systems as well. For example, he stated that if the Respondents introduce a new field for gender, that information cannot be transmitted to downstream systems unless they also update their systems to support such inputs. In other words, each of the downstream systems (including but not limited to: Rover, each API, each EMR, EHR, and PLIS) would need to be reprogrammed to be compatible with changes made to IntRlab. He did not provide information regarding how long these additional changes would take or what the cost would be.

[248]      However, Stephan Mueller also explained that LifeLabs has a team of developers who have access to the source code and work on the system. As he put it, these developers have experience working around the system’s old architecture when creating new functionalities. He further explained that LifeLabs is responsible for providing APIs for the EMRs to download the patient laboratory results from LifeLabs as well as from other organizations that distribute reports through Rover, which they deliver on an ongoing basis. He stated that LifeLabs regularly works with target organizations on onboarding, configuration testing and verification, and messaging formats for the integration of data. I understand this to mean that the Respondents regularly work with various users to ensure that systems can communicate with each other and resolve any compatibility issues that arise in the transmission of data. To the extent that third parties may be required to update their systems to ensure compatibility with the Respondents, I have not heard evidence of any hardship this would cause to the Respondents.

[249]      With respect to patient demographic information, Stephan Mueller’s evidence was that there is certain default information that must be transmitted so the systems know what records are being sent. This includes a patient’s name, PHN (if it is available), date of birth, and sex. He confirmed that IntRlab can accept and transmit the inputs “M”, “F”, or “U” (for unknown) with respect to sex, and PLIS can accept these same options.

[250]      However, Stephan Mueller did not give evidence, as the Respondents suggest in their submissions, that the sex information transmitted about a patient must match the BC Services Card or the information on file within a downstream database such as a doctor’s office or PLIS in order for it to be received. There is also no evidence before me that the downstream users, other than MSP, require or assume that the information sent by the Respondents would perfectly match the information on the BC Services Card, or that this is necessary for it to be received.

[251]      In fact, the experience of Mr. Viezzer suggests otherwise. In his case, the evidence shows that between 2014 and 2017, his BC Services Card listed his sex as “M”, but the Respondents produced lab reports containing an incorrect “F” sex marker and they were successfully transmitted to his doctor’s office. Similarly, there is evidence that a BC Cancer report listing his sex as “U” was successfully transmitted in 2019. 

[252]      The Respondents’ evidence therefore falls short of establishing that the sex information used in the provision of laboratory services and transmitted to downstream users on laboratory reports must match the information on the patient’s BC Services Card for the systems to function.

[253]      However, even if the Respondents were to establish that patient demographic information can only be transmitted if it matches the BC Services Card, as I discuss further below, they have not established that they explored all reasonable or practical alternatives. 

[254]      Based on the information before me, I am not persuaded that technology constraints prevent the Respondents from making changes which could accommodate the gender identity of the Complainants (where their BC Services Card has not been updated). The Respondents are a large corporation with a dedicated software development team with the expertise to make appropriate adjustments throughout IntRlab and provide corresponding APIs to downstream systems as necessary.

c.   Medical considerations

[255]      In their opening statement, the Respondents stated that it would be medically irresponsible to accommodate the Complainants in the manner sought in this complaint. They did not expand on this position in their closing submissions, except in response to a potential remedy sought by the Complainants: providing different reference ranges on lab reports. In that respect, the Respondents state the decision of which reference range is appropriate for a particular patient is a question of the appropriate standard of medical care or medical judgement, to which the Tribunal should not interfere. As I have not found Snow’s allegation on this issue to be substantiated, I do not find it necessary to assess this argument further in my decision.

[256]      Information about a patient’s sex may be medically relevant in the provision of laboratory services. However, I wish to be clear that there is no evidence before me to support that the standard is medically necessary or justified. Such a position would be difficult to reconcile with the undisputed evidence that LifeLabs can provide laboratory services for patients with “X” markers on their BC Services Card, even though they may not have any information about the biological sex of that individual. 

d.   Conclusions on the duty to accommodate and undue hardship

[257]      To establish their justification defence, the Respondents must demonstrate that they met their duty to accommodate the Complainants to the point of undue hardship by presenting evidence that they took all reasonable steps to explore other approaches and they “could not have done anything else reasonable or practical to avoid the negative impact on the individual”: Moore at para. 49. They must present evidence to prove undue hardship: Hydro-Québec v. Syndicat des employé-e-s de technique professionels et de Bureau d’Hydro- Québec, 2008 SCC 43 at para. 12.

[258]      I did not hear evidence of any measures the Respondents took, or reasonably explored at the relevant time, to accommodate the Complainants and avoid the discriminatory conduct in this case. I acknowledge that the Respondents were following their internal policies within the confines of an integrated electronic system which, in its current configuration, would not allow them to do otherwise. However, the Respondents have not established on the evidence that making changes to their procedures and/or IntRlabs that would provide a gender-affirming standard of care to trans and non-binary patients would constitute undue hardship.

[259]      I observe that the Respondents have put before the Tribunal public documents[3] that include recommendations for alternative practices available to health services providers. One common theme advanced by PLMS and the Institute for Quality Management in Healthcare is a recommendation to collect gender information as distinct from sex information (which may be necessary for billing purposes), which allows the patient to be addressed in the manner in which they identify. This is consistent with the information in Dr. Saewyc’s expert report which emphasizes using the gender terminology and pronouns identified by the patient as best practices in gender-affirming care. 

[260]      The Respondents do not currently collect sex and gender information as separate and distinct fields, but the evidence before me is that they have contemplated adding a gender field in IntRlab which would allow them to do so.  Stephan Mueller’s evidence does demonstrate that there would be some hardship to make this change, including that it could take over a year and require cross-system coordination and configuration with downstream systems. This is significant. However, some hardship is expected in the accommodation process and does not mean the option is unreasonable: Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para. 122. Given the limited evidence before me on the cost of changing the system, I am not persuaded that these efforts would make the hardship undue.

[261]      The Respondents did not put forward arguments regarding why another change suggested by the Complainants would cause undue hardship; namely, to develop capabilities for IntRlab to “mask” sex information collected for certain patients (such as for MSP billing purposes) or otherwise create a rule to stop displaying this information in certain places. Stephan Mueller was asked about this on cross-examination, and he stated that it would take “significant effort” to create coding that would allow this change, similar to creating a new data field, because it is not a capability inherent in the system. There is no evidence before me that the Respondents had considered such an approach, which has the potential to prevent the type of misgendering seen in this complaint, prior to the hearing.

[262]      Further, the Respondents have not provided evidence or argument of whether they considered other, less technically onerous, measures to accommodate the Complainants.

[263]      On this basis, I find that the Respondents have not established that the adverse impacts experienced by the Complainants is justified. As such, it is discriminatory.

VI    REMEDY

[264]      Having found a violation of s. 8 of the Code, I must now determine the appropriate remedy to award in this case.  

A.    Cease and refrain order

[265]      I begin by ordering the Respondents to cease the contravention of the Code and to refrain from committing the same or a similar contravention: Code, s. 37(2)(a).

B.    Declaratory order

[266]      Under s. 37(2)(b) of the Code, the Tribunal may make a declaratory order that the conduct complained of, or similar conduct, is contrary to the Code. In the circumstances of this case, I consider it appropriate to make such an order. I declare that Respondents discriminated against the Complainants based on gender identity or expression, in violation of s. 8 of the Code.

C.    Lost wages

[267]      The Respondents do not dispute that the Complainants are entitled to an award for lost wages for the days they attended the hearing.

[268]      The Tribunal has previously held that wages lost to attend a hearing are compensable under s. 37(2)(d)(ii) of the Code: Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37.

[269]      Initially, the Complainants requested $6,300 to be divided equally between Noa, Snow, and Mr. Viezzer. However, during the hearing they presented evidence with respect to the wages lost by each Complainant. I calculate the entitlement of each Complainant as follows:

a.   Mr. Viezzer attended the hearing on all five days. He provided a recent pay stub which showed that, at the time of the hearing, he received a daily salary of $384.38, which he could not earn on the days he attended the hearing. I am satisfied that he is entitled to $1,921.90 for lost wages.

b.   Snow also attended the hearing on all five days. They provided a letter from their employer indicating that they receive $23.00 per hour. Snow testified that they work approximately 20 hours per week. I am satisfied that Snow is entitled to compensation for 20 hours for the week of June 30 to July 4, 2025, when they attended this hearing. However, the following week, they only attended the hearing on July 7.  I find that four hours is a reasonable pro-rated calculation for missed work in the second week of the hearing (20 hours on average of work per week divided by five working days). I find Snow is entitled to compensation for lost wages of $552.00 ($23.00 X 24 hours).

c.   Noa only attended the hearing for one day. They provided a recent pay stub confirming they receive $70.31 per hour. They are entitled to $492.17 (based on a seven-hour workday) in compensation for lost wages.

D.   Injury to dignity

[270]      The Tribunal has the discretion to order compensation for injury to dignity, feelings and self respect under s. 37(2)(d)(iii) of the Code. The purpose of this award is to compensate the Complainants for the harms of discrimination. It is not punitive. The Tribunal generally considers three broad factors: the nature of the discrimination, the complainant’s vulnerability, and the effect on the complainant: Oger (No. 7) at para. 225. The quantum is “highly contextual and fact-specific”, and the Tribunal has considerable discretion to award an amount it deems necessary to compensate a person who has been discriminated against: Gichuru at para. 260; University of British Columbia v. Kelly, 2016 BCCA 271 [Kelly] at paras. 59–64.

1.     Nature of the discrimination

[271]      The conduct I have found discriminatory with respect to each Complainant relates to single transactional incidents at LifeLabs PSCs. The Respondents refused to recognize Noa’s non-binary gender identity and misgendered them. They would not allow Snow to update his gender identity in their system, and as a result, misgendered him in their records. Mr. Viezzer was labelled with a term he found offensive and could only access the Respondents’ service if his transgender identity was disclosed, without necessity or justification, to every person who handled his laboratory requisition form. The Complainants’ dignity was harmed by each of these interactions.

[272]      While the evidence of Snow and Mr. Viezzer indicated that the interactions were relatively brief, Noa’s evidence is that their experience lasted over an hour. Noa and Snow’s experiences were exacerbated by the public nature in which they occurred.

[273]      While these interactions had significant impacts on the Complainants, I do not find the conduct of the LifeLabs staff members was malicious in nature; rather, it was informed by the Respondents’ policies and procedures (in the case of Noa and Snow), and lack of understanding or appreciation of the sensitivity of trans status information (in the case of all three Complainants).

2.     Vulnerabilities and social context

[274]      Situating the discrimination in its social context helps the Tribunal to “consider whether any social forces heightened the power imbalances between the parties or worsened the specific effect that the discrimination had on a complainant”: Bayongan v. Shimmura and another, 2023 BCHRT 27 at para. 74.

[275]      I find the Complainants, as a group, were uniquely vulnerable to the discrimination in this case. In describing the group members as “vulnerable”, I note that their vulnerability derives from “systemic patterns of inequality and oppression” and are not features endemic to them as individuals or a group: Nelson at paras. 130-131; Chilliwack Teachers’ Association v. Neufeld (No. 10), 2026 BCHRT 49[Neufeld] at para. 306. I highlight two considerations.

[276]      First, Snow identified that the reason they required regular laboratory testing was directly connected to the gender-affirming care they were receiving. In this sense, they were dependent on the Respondents for a crucial aspect of affirming their gender identity. Noa and Mr. Viezzer were also dependent on the Respondents for a medically necessary service.

[277]      Second, the Complainants each came to their experience at LifeLabs in the context of a medical system in which they had each already experienced barriers to access because of their trans or non-binary status. These systemic barriers were detailed throughout Dr. Saewyc’s evidence. Further, 2SLGBTQIA+ people, especially trans people, are generally vulnerable because of the forces of systemic inequality that continue to oppress, marginalize and discriminate against them: Oger (No. 7) at paras. 60-62; Nelson at para. 132; Hansman at paras. 84-89; Neufeld at para. 308. This social context has been highlighted throughout this decision.

[278]      At the same time, I acknowledge that the Complainants each indicated that one of their motivations for bringing this complaint was to ensure the same conduct did not occur to other, more vulnerable, trans people. Noa, for example, acknowledged their privilege as a lawyer who is knowledgeable about their rights and the legal system.

3.     Effect of the discrimination

[279]      The events in this complaint had a significant impact on each Complainant. I accept their evidence about the impact the incidents had on them.  

[280]      Noa testified that their experience was demeaning, and made them feel very small, like a child being chastised. They described feeling shocked, distressed, and as if their dignity had been taken. They stated that it felt like their blood as a trans person was not worthy of being drawn.

[281]      Noa explained that it was difficult to go back to work following their experience at the PSC. After recounting what happened to their doctor, their doctor helped them find other laboratories to attend over the next few years as they did not want to return to LifeLabs, even if it was inconvenient. Noa did not return to LifeLabs until 2024, at which time they brought support but still felt very scared and distressed. They stated that they still do not trust LifeLabs to prevent this from happening again.

[282]      Snow described feeling “othered”, different, difficult, sad, frustrated, angry, unimportant and disappointed because of their experience at LifeLabs. They further felt embarrassed because of the public nature of the encounter.

[283]      Snow also testified that he avoided returning to LifeLabs after his experience. While he was supposed to attend four times per year for regular screening, he was reluctant to do so and his doctor eventually said, “we need you to go at least once a year for a check up.” He said the thought of returning to LifeLabs caused him anxiety, knowing that the same thing would happen again until his identification was changed. Ultimately, he moved out of the province and has not needed to use LifeLabs’ services.

[284]      Mr. Viezzer described having a physiological reaction upon seeing the letters “FTM” on his laboratory requisition form. He found it “nauseatingly offensive.”  As he was testifying, he stated that he could still feel the offensiveness viscerally in his body. He stated that it felt like his maleness was undermined and his identity was being erased.

[285]      Mr. Viezzer did not have his blood taken that day as required. This experience occurred in the context of having been misgendered by LifeLabs on his lab results in the past, and he continued to be triggered by seeing laboratory reports listing the wrong gender marker while preparing for this complaint. He testified that he has delayed undergoing further medically necessary laboratory testing and cancer screening out of fear that his male gender identity would continue to be undermined. 

[286]      The Complainants’ description of the impacts of their experience is consistent with the expert evidence admitted at the hearing. Dr. Saewyc explained that misgendering in health care settings based on binary gender assumptions can be a significant source of distress for transgender and non-binary people, and is often experienced as “disrespectful, humiliating, and discriminatory.” Dr. Saewyc further explained that “negative experiences or fear of further negative experiences in health care foster reluctance to disclose their gender identity to health professionals, and to avoid further health care.”

4.     Quantum of award

[287]      The Complainants initially indicated that they were each seeking $30,000 in compensation for injury to dignity. However, following the hearing they now ask the Tribunal to order a much larger award. They do not specify what this higher amount should be.

[288]      The Respondents say this amount is excessive, and an appropriate award should not exceed $2,500.

[289]      There is no cap on an injury to dignity award under the Code, and I am not bound by ranges established by previous cases: Gichuru at para. 253; Kelly at para. 60. The assessment is fact specific.  Nevertheless, taking a principled approach in view of the circumstances of this case, I am informed by other cases in which the Tribunal has made injury to dignity awards. I acknowledge that the facts in the current complaint are novel and there are few other cases dealing with the same service-related conduct.

[290]      The Complainants say Dawson is analogous, as both cases involve misgendering and a denial of medical care related to gender transition. Ms. Dawson received $15,000 for injury to dignity. The Complainants suggest that the current complaint is more serious because the conduct took place over a longer period; however, that is not reflected in my findings of substantiated conduct. The Respondents say the conduct in Dawson was much more egregious than the current complaint.

[291]      I find Dawson is helpful, but it did involve multiple substantiated allegations including conduct on different occasions, which is not the case here. On the other hand, I am mindful that Dawson is 11 years old, and the trend in Tribunal awards is upward: Benton v. Richmond Plastics, 2020 BCHRT 82 at para 78.

[292]      The Complainants also point to Nelson and EN v. Gallagher’s Bar and Lounge, 2021 HRTO 240, as similar cases. In Nelson, the complainant was awarded $30,000 for employment discrimination related to their transgender identity, including misgendering, use of unwelcome gendered nicknames, and termination of employment. In EN, each complainant was awarded $10,000 for employment discrimination including misgendering, use of transphobic language, and constructive dismissal. The Respondents say these cases are clearly distinguishable on the facts, as they are not service-related complaints.

[293]      While the conduct in these complaints is similar, I agree that Nelson and EN are of somewhat limited assistance as they are employment termination cases. The Tribunal has recognized that given the fundamental aspect of work to a person’s life, cases involving termination of employment have often attracted the top end of awards: Nelson at para. 129. The conduct I have found discriminatory in this complaint was also much shorter in duration and involved single incidents, which I find warrants a lower award.

[294]      I do not agree with the Respondents that Panas v Edmonton Police Service, 2025 AHRC 3, is an analogous case. Notably, the Human Rights Tribunal of Alberta dismissed that complaint involving misgendering and did not award any remedies. That is clearly distinguishable from my findings here. Similarly, Brooks v. Total Credit Recovery Limited, 2012 HRTO 1232, an employment complaint where the complainant was awarded $2,500, is not particularly helpful. That case involved a public racialized comment by a senior manager which led to a poisoned workplace.

[295]      Although distinct factually, I find the following injury to dignity awards in the context of single incidents in the provision of services to be informative.

[296]      In Child Q v. Ajaero (No. 2), 2026 BCHRT 189, the Tribunal awarded $20,000 in injury dignity to a transgender girl whose doctor refused to administer an injection of a medication designed to pause her puberty. The Tribunal recognized the unique vulnerabilities arising from the complainant’s young age and the social context impacting transgender youth, the urgency of the denied medical service, as well as the unequal power relationship with her doctor as a “gatekeeper” to the public heath care system and the corresponding breach of this relationship of trust.

[297]      In Client v. Spruce Hill Resort & Spa, 2021 BCHRT 104, the Tribunal awarded $15,000 to a complainant who was refused services because of the Spa’s policy not to give massages to someone with a history of cancer without a doctor’s note. The complainant in that case had unique vulnerabilities and the denial of services left them feeling “ugly, ashamed, and self-conscious about her appearance and medical history”: at paras. 41-46.

[298]      In Pike v. Ooh La La Café and others (No. 2), 2023 BCHRT 99, the Tribunal awarded $12,000 to a legally blind complainant who was denied a service because of the presence of her guide dog. The Tribunal found the impact of the discrimination on the complainant to be significant, including feeling “demeaned and helpless” and long-term avoidance of public places out of fear the discriminatory conduct will recur: Pike at para. 50.

[299]      While the Complainants have asked for the same award, in my view it is more appropriate to conduct an individualized assessment for each complainant. I find the conduct experienced by Noa was the most egregious given the repeated questions over a prolonged period, and ultimate misgendering despite their repeated insistence that they were non-binary. I find the Noa is entitled to compensation for injury to dignity in the amount of $15,000.

[300]      Snow’s experience was also serious and had the serious impact of causing them to avoid further medically necessary testing to prevent a similar experience. I find Snow is also entitled to $15,000 in compensation for injury to dignity.

[301]      Finally, while Mr. Viezzer brought forward more allegations of discrimination, I have only found one discrete instance was substantiated. Unlike Noa and Snow, he chose not to continue accessing the Respondents’ service in response to the discriminatory treatment, so the nature of the adverse effect was shorter in duration and less public in nature. I have not found that the notation was motivated by malice or an intention to offend Mr. Viezzer. However, the impact on Mr. Viezzer was significant, and added to a cumulation of misgendering experiences from the Respondents.

[302]      The Tribunal has previously recognized that a single discriminatory comment generally calls for more modest damages: Martinez Johnson v. Whitewater Concrete Ltd. and others (No. 2), 2022 BCHRT 129 at para. 85. In the circumstances, I find he is entitled to compensation for injury to dignity in the amount of $2,000.  

E.    Expenses

[303]      The Complainants seek compensation for the expert witness report as well as other expenses incurred for attending the hearing. The Complainants bear the burden of establishing that compensation for expenses should be paid.

1.     Expert witness

[304]      The Complainants seek reimbursement for the expenses incurred for obtaining Dr. Saewyc’s evidence. To support their claim, they submitted invoices for:

a.   $7,200 for Dr. Saewyc’s work preparing the expert opinion report; and

b.   $3,900 for Dr. Saewyc’s time preparing for and providing testimony at the hearing.

[305]      The Respondents submit that Dr. Saewyc’s expert evidence was unnecessary as she admitted to never having met any of the Complainants or reviewing their records. They say her evidence had no specific relevance to the matters at hand, and the associated costs should not be recoverable against the Respondents.

[306]      The Tribunal has frequently awarded compensation for expert reports and the attendance of experts at a hearing, where such evidence is necessary to establish a contravention of the Code. For example, expert evidence may be necessary to establish a number of elements essential to establishing a contravention, including: “to show the complainant comes within the protection of the Code, e.g. where a complainant’s disability is in issue; the nature or effect of the adverse effect alleged; or the damages flowing from the contravention”: Cassidy v. Emergency and Health Services Commission and another (No. 3), 2009 BCHRT 110 at para. 121.

[307]      Dr. Saewyc’s report and testimony at the hearing provided useful social context evidence which has assisted me to situate the Complainants’ allegations within a broader understanding of barriers to health care for the transgender and non-binary people in British Columbia. The Respondents cross-examined Dr. Saewyc and relied on her evidence in their closing submissions. I have also relied on her evidence throughout this decision. I am satisfied that Dr. Saewyc’s evidence was necessary in establishing the nature and effect of the adverse impacts alleged, as well as the appropriate remedy.

[308]      I order the Respondents to pay $11,100 in compensation for the expert evidence.

2.     Lunch on hearing days

[309]      The Complainants each seek compensation for the cost of lunch on each hearing day. The Respondents say the amounts sought are excessive.

[310]      I decline to order compensation for these expenses for two reasons. First, the Complainants did not provide notice to the Respondents that they were seeking reimbursement for this expense in advance of the hearing. Second, while the Complainants provided evidence that their legal counsel’s law firm distributed per diems to each complainant to cover lunch expenses, they have not provided receipts or other evidence of the actual expenses they incurred: Bertrend v. Golder Associates, 2009 BCHRT 274 at para. 274.

3.     Private space to attend the hearing

[311]      The Complainants have provided invoices for a hotel room which was rented for Snow to have a private space to attend the hearing. The Respondents say these expenses are excessive.

[312]      The Complainants did not provide notice to the Respondents that they would be seeking reimbursement for this expense in advance of the hearing. Further, Snow did not provide any testimony or other evidence regarding why this expense was necessary in the context of a virtual hearing, and in the absence of this evidence I do not find they have established that it was justified in the circumstances.  I decline to order compensation for this expense.

F.     Interest

[313]      The Tribunal has the discretion to award interest on awards and regularly does so. An award of interest is part of the compensatory nature of the Tribunal’s awards, recognizing that but for the discrimination a complainant would have had the use of the money now awarded. The interest places the complainant in the economic position they would have been in but for the discrimination: Vasil v. Mongovius and another (No. 3), 2009 BCHRT 117.

[314]      I order the Respondents to pay the Complainants post judgement interest on the wage loss award and the order for compensation for injury to dignity, feelings and self-respect in accordance with the provisions of the Court Order Interest Act.

[315]      I find pre-judgement interest is not appropriate in this case as the wage loss was incurred during the hearing, rather than at the time of the complaint.

G.   Payment to a third party

[316]      In their closing submissions, the Complainants ask that the Tribunal order the Respondents to make a $10,000 payment to an organization operated by trans people which supports transgender human rights or transgender healthcare. They frame this as a request for a “public interest remedy”.

[317]      The Complainants explain that the rationale for seeking this award is that trans people must obtain laboratory services from the Respondents often as part of gender affirming care, and the conduct this group experienced has the potential to affect potentially 200,000 British Columbians.

[318]      However, the Complainants have not provided any authority to support an award of this nature. I find it is beyond my jurisdiction under s. 37 of the Code to do so. While this is a group complaint, the Complainants are the only members of that group, even if there may be others with similar experiences.

[319]      Accordingly, I decline to make such an order.

H.   Training and remedial measures

1.     New remedies sought and procedural fairness

[320]      In their closing submissions, the Complainants set out fifteen specific remedial measures that they ask the Tribunal to order with respect to the Respondents’ policies and procedures. The Respondents say that the remedies now sought bear little to no resemblance to the remedies sought in the original complaint, or in the Complainants’ Form 9.4 Remedy Sought. They say it would be procedurally unfair for the Tribunal to make orders regarding remedies they had no notice of in advance of the hearing.

[321]      I agree that the Complainants have largely expanded the scope of the remedies sought without providing adequate notice to the Respondents.

[322]      The Complainants’ Form 9.4 includes a request that the Tribunal order the Respondents to take the following steps to address the effects of a discriminatory practice:

a.   Correct the records (without further proof) of all members of the group who request it and publicize the process to patients;

b.   Implement effective training, and address ongoing non-compliance with any policy or right related to trans people;

c.   Ensure interviews do not happen at reception; and

d.   Send correct [reference] ranges.

[323]       Some of the remedies now sought appear to further particularize these remedies, and to that extent, I consider them. However, I decline to consider or order the remaining new remedies now sought by the Complainants.

[324]      I find there would be procedural unfairness to the Respondents if I were to order remedies for which they had no notice of in advance of the hearing. Procedural fairness requires that a party affected by a decision must know the case against them and be provided a meaningful opportunity to respond to it: Christensen v. Caretenders Financial Services Inc. and others (No. 2), 2023 BCHRT 205 at para. 12. The Tribunal establishes deadlines for disclosure and submission of forms related to remedy to allow the parties sufficient time to prepare and respond, in advance of the hearing. Had the Complainants filed an amended Form 9.4 in advance of the hearing, the Respondents could have taken steps to respond, including by calling evidence at the hearing. They were not provided that opportunity and only learned of the new remedies sought at the end of the hearing, after evidence had closed.

[325]      Some of these proposed remedial measures may be of interest or assistance to the Respondents as they develop a strategy to cease the discriminatory conduct found in this case. However, I accept that it is appropriate for the Respondents to decide on the appropriate remedial steps available to correct the discriminatory conduct identified: The Minister of Health Planning v. The British Columbia Human Rights Tribunal, 2003 BCSC 1112 at para. 27.

2.     Remedies sought

[326]      I now consider the remedies sought by the Complaints for which the Respondents had notice.

[327]      Section 37(2)(c) of the Code gives the Tribunal the authority to order the person that contravened the Code to take steps, as specified in the order, to ameliorate the discriminatory practice. However, the Tribunal must exercise caution not to be overly prescriptive and to consider how the order will ameliorate the effect of the discriminatory practice: The Minister of Health Planning at paras. 26 and 27.

[328]      The remedy must also “flow from the claim”: Moore at para. 64. In other words, the Tribunal can only order remedies that have a connection to the discriminatory conduct made out in the complaint. However, some remedies that are specific to a complainant may have remedial consequences for others in the same circumstances: Moore at para. 63.

a.   Correcting records

[329]      I understand the Complainants to seek an order that the Respondents correct their laboratory records where they have been misgendered. They also seek for this process to be publicized and available to all trans and non-binary patients who have been misgendered by the Respondents.

[330]      The evidence before me is that only Mr. Viezzer has sought to correct his records with the Respondents, and that has been completed. In his case, the Respondents were able to amend his records because the misgendering which occurred was not consistent with the demographic information on his BC Services Card.

[331]      There is also evidence that both Noa and Snow were misgendered in their records produced and held by the Respondents. Providing Noa and Snow with an opportunity to correct these records would serve to ameliorate the discrimination they experienced.

[332]      The Respondents say they are required under ss. 13(3) and 14 of the Laboratory Services Regulations to keep the original laboratory requisition form for six years. They say they cannot correct the records of patients without breaching the law.

[333]      I do not accept this submission. The Respondents do not explain, and it is not apparent to me, how the Laboratory Services Regulations would prohibit them from amending or removing the information entered into IntRlab and reported downstream regarding Noa and Snow’s gender. In any event, I observe that it has been more than six years since Noa and Snow attended LifeLabs in 2019, which, on the Respondents’ submissions, indicates that the timeline for record retention under s. 14 of the Laboratory Services Regulations has now passed.

[334]      I order the Respondents to take all reasonable steps to correct, remove, or otherwise mask the misgendering that occurred during and following Noa and Snow’s visits to LifeLabs in 2019. I order that they do so within eighteen months of the decision.

[335]      However, I decline to order that the Respondents publicize and make this process available to the general public, as this goes beyond what flows from the findings in this complaint.

c.   Remedies to protect trans-patients’ privacy at PSCs

[336]      The Complainants seek an order that the Respondents ensure that interviews with patients about their gender identity do not happen at reception. This request stems from Noa and Snow’s experiences of having to discuss their gender identity at the intake counter at LifeLabs PSC, which I have found exacerbated the adverse impact. This is because the disclosure of someone’s transgender or non-binary identity in a public setting can place them at risk of harm.

[337]      Norma Neale testified that if a patient is uncomfortable discussing their gender at the front desk, staff can escort them “to the back” to allow more privacy. However, there is no evidence that there is a designated private space available at PSCs for these conversations, and there is no policy in place that requires staff to offer patients this option. Dr. Ross testified that they are currently looking at options to address this issue.  

[338]      In their closing submissions, the Complainants have expanded on this request. They specify that they seek an order that the Respondents:

Change the verification, data entry and accessions, queue entry and specimen collection procedures to require significant privacy and care when verifying information which could deadname, misgender, or out a patient, or when asking clinically relevant questions, such as whether a patient is pregnant, which distress trans people.

[339]      While the specificity of this request may be informative to the Respondents, I decline to allow the Complainants to expand their remedy sought on this issue. First, I am concerned about procedural fairness given the timing of this request. Second, my findings in this complaint relate to patient interviews at intake and the expanded remedy sought goes beyond this practice.

[340]      I am satisfied that an effect of the discriminatory treatment was the loss of privacy for all three Complainants and an order relating to privacy at intake is appropriate to ameliorate that effect.  

[341]      I order the Respondents to take reasonable steps to ensure that transgender and non-binary patients have, and are made aware of, the option of a private space to discuss or answer questions relating to their sex or gender, that is not in close proximity to other patients. I order that they do so within six months of the decision.

b.   Training and accountability

[342]      The Complainants seek an order that the Respondents implement effective training for all staff regarding transgender patients. Specifically, they seek an order that a policy and associated training be developed that recognizes barriers trans people face when accessing laboratory services and the vulnerability of their data and establishes procedures that address privacy and human rights considerations. They ask that the training be compulsory and that there is an accountability framework to ensure that the training is effective at controlling discrimination, not just that it is conducted, and non-compliance is addressed.

[343]      The Respondents say an order of this nature is not necessary as in 2021, they worked with TransCare BC to develop a gender diversity and gender education project for their staff. The Respondents led evidence concerning this training and the tracking of course completion rates.

[344]      I am satisfied that, subsequent to the events in this complaint, the Respondents have made significant efforts to train their staff on the various issues unique to transgender patients. However, this decision has highlighted the importance of privacy and the sensitivity of trans and non-binary patients’ personal information in medical settings. I order the Respondents to provide updated training to all staff and management in BC to specifically address these considerations within one year of this decision.

[345]      I decline to order the Respondents to develop an accountability framework, as I trust that my order to cease the discriminatory conduct addresses potential non-compliance with the Respondents’ human rights obligations.

d.   Reference ranges

[346]      The Complainants ask for an order that compels the Respondents to allow health care providers to specify the appropriate ranges for their patients.

[347]      Given that Snow’s allegation with respect to reference ranges was not substantiated in this complaint, an order of this nature does not flow from the decision.  Accordingly, I decline to order this remedy.

3.     Remaining seized

[348]      The Complainants ask that the Tribunal remained seized of this matter to ensure that the remedial steps are implemented to the Tribunal’s satisfaction. They point to a decision of the Ontario Human Rights Tribunal as an example of a Tribunal remaining seized to oversee implementation of a remedial order: Forrester v. Peel (Regional Municipality) Police Services Board et al, 2006 HRTO 13.

[349]      The Respondents have not provided a position on this issue. However, I note that the Complainants raised this issue for the first time in their closing submissions.

[350]      I decline to make such an order for the following reasons.

[351]      The Tribunal is not involved in the enforcement of its remedial orders. It is open to Complainants to seek enforcement of orders in the BC Supreme Court: Code, s. 39.

[352]      In rare circumstances, the Tribunal has retained jurisdiction over the implementation of a remedy if there is a specific reason to do so. For example, in Biggings obo Walsh v. Pink and others, 2018 BCHRT 174 at para. 134, the Tribunal ordered the respondent to take certain steps within nine months, and the Tribunal remained seized only if the respondent required an extension to comply with the order. In Moore, the Tribunal said it would remain seized “to ensure that its remedial orders are appropriately implemented.” However, on judicial review, the Supreme Court of Canada overturned that order finding it was unnecessary in the circumstances.

[353]      I am not persuaded that there is a reasonable basis for the Tribunal to remain seized in this case. The orders I am issuing in this decision give the Respondents latitude to address the Code violations that have been established. I am satisfied that the Respondents will take reasonable steps to address the Tribunal’s findings and comply with its orders.  Otherwise, they may face enforcement proceedings in Court and future human rights complaints. In view of the various measures they have already implemented within the last five years, I am satisfied that they are willing and motivated to take the appropriate action. 

VII  CONCLUSION

[354]      The complaint is substantiated, in part. I have found the Respondents discriminated against each of the Complainants based on their gender identities, in violation of s. 8 of the Code.

[355]      I make the following orders:

a.   I declare that the Respondents’ conduct contravened s. 8 of the Code: Code, s. 37(2)(b).

b.   I order the Respondents to cease the contraventions and refrain from committing the same or similar contraventions: Code, s. 37(2)(a).

c.   I order the Respondents to pay the Complainants for lost wages (Code, s. 37(2)(d)(ii)) as follows:

                                            i.        $1,921.90 to Vincent Viezzer;

                                           ii.        $552.00 to Devan Snow; and

                                         iii.        $491.17 to Noa Moses.

d.   I order the Respondents to pay the Complainants $11,100 as compensation for expenses incurred by discrimination: Code, s. 37(2)(d)(ii).

e.   I order the Respondents to pay the Complainants compensation for injury to their dignity, feelings, and self-respect (Code, s. 37(2)(d)(iii)) as follows: 

                                            i.        $2,000 to Vincent Viezzer;

                                           ii.        $15,000 to Devan Snow; and

                                         iii.        $15,000 to Noa Moses.

f.    I order the Respondents to pay post-judgement interest on the damage award until paid in full, based on the rates set out in the Court Order Interest Act.

g.   I order the Respondents to take the following steps to ameliorate the discriminatory practice (Code, s. 37(2)(c)):

                                            i.        Within 18 months of this decision, take all reasonable steps to correct, remove, or otherwise mask the misgendering that occurred during and following Noa and Snow’s visits to LifeLabs in 2019.

                                           ii.        Within six months of this decision, take reasonable steps to ensure that transgender and non-binary patients have, and are made aware of, the option of a private space to discuss or answer questions relating to their sex or gender, that is not in close proximity to other patients.

                                         iii.        Within one year of this decision, develop training on trans and non-binary patients’ privacy considerations, and provide it to all staff and management in British Columbia.

Theressa Etmanski
Tribunal Member

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[1] Though my timeliness analysis does not turn on it, I note that in his complaint, Mr. Viezzer indicated that this occurred in May 2019; however, he clarified in his testimony that it was July 2019. As such, I understand this allegation to be about events in July 2019.

[2] In his complaint, Mr. Viezzer lists December 3, 2019, as the date he received this lab report; however, I understand this to be related to the same test that was recorded on November 8, 2019.  

[3] Institute for Quality Management in Healthcare: Care Considerations for Inclusion of Gender Diversity within Medical Laboratory Services (November 2019); and Provincial Laboratory Medicine Services: Laboratory Considerations for Care of Gender Diverse Patients (November 14, 2019).