Complaint Against Health Canada Over Blood Donation Policy Dismissed by Tribunal

OUTCOME: [NAME] Tribunal Tribunal canadien des droits de la personne Citation: 2024 [NAME] 133 Date: December 10, 2024 File No. : T2425/8419 Between: [RESPONDENT] - and - [NAME] Commission Commission - and - [RESPONDENT] Respondent Decision Member: [NAME] \o "1-3" \h \z \u I. OVERVIEW AND

DECISION PAGEREF _Toc184643799 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003700390039000000 II. ISSUE(S) PAGEREF _Toc184643800 \h 2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800300030000000 III. PROCEDURAL HISTORY PAGEREF _Toc184643801 \h 2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800300031000000 IV. FACTUAL

BACKGROUND PAGEREF _Toc184643804 \h 3 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800300034000000 A. History of the blood system in [RESPONDENT] _Toc184643805 \h 3 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800300035000000 B. Governing legislation and the [NAME] _Toc184643806 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800300036000000 C. The blood donation deferral policy PAGEREF _Toc184643807 \h 6 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800300037000000 V. ANALYSIS PAGEREF _Toc184643808 \h 7 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800300038000000 A. What principles guide the Tribunal in deciding whether to strike a complaint on a motion? PAGEREF _Toc184643809 \h 7 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800300039000000 B. Is [RESPONDENT]’s motion an abuse of process? PAGEREF _Toc184643810 \h 8 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800310030000000 C. What principles guide the Tribunal in deciding whether a complaint involves a “service” under section 5 of the Act? PAGEREF _Toc184643811 \h 10 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800310031000000 D. Does “law making” include making regulations? PAGEREF _Toc184643812 \h 11 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800310032000000 E. Is the complaint a direct challenge to the [NAME]? PAGEREF _Toc184643813 \h 13 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800310033000000 (i) [RESPONDENT]’s actions as a regulator do not have “the transitive connotation” of a [NAME] holding out services to the public PAGEREF _Toc184643814 \h 13 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800310034000000 (ii) Analysis of the [RESPONDENT]’s allegations PAGEREF _Toc184643815 \h 14 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800310035000000 (iii) Analysis of the [NAME] _Toc184643816 \h 16 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800310036000000 F. Is it plain and obvious that the complaint has no reasonable chance of success and should be struck? PAGEREF _Toc184643817 \h 18 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800310037000000 VI.

ORDER PAGEREF _Toc184643818 \h 19 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100380034003600340033003800310038000000 I. OVERVIEW AND

DECISION [ 1 ] [RESPONDENT], the [RESPONDENT], contests the blood donation “deferral” policy (the “Policy”) that prevents men who have sex with men (MSM) from donating blood for a period of time after they last had sex with a man. Mr. [RESPONDENT] says the Policy discriminates against him based on his sexual orientation as a gay man. [RESPONDENT], the Respondent, argues that this complaint should be dismissed because it doesn’t provide a service as defined in the [NAME], RSC 1985 c H-6 (the “Act”). [ 2 ] For the reasons provided below, I agree with [RESPONDENT] and dismiss this complaint. [RESPONDENT] fulfils a regulatory role that is defined in the [NAME] , SOR/2013/178 (the “[NAME]”). It is responsible for approving the policies of [COMPANY] ([NAME]) on whether particular [NAME] are eligible to donate blood. However, [RESPONDENT]’s oversight is limited to considerations of human safety and the safety of blood. Mr. [RESPONDENT] had a separate complaint against [NAME] which was settled. [ 3 ] [RESPONDENT]’s role in regulating [NAME] is not a service within the meaning of section 5 of the Act. In particular, it does not have the transitive connotation of services passing from a [NAME] and being held out to the public. [ 4 ] In addition, this complaint is a challenge to [RESPONDENT]’s role as set out in the [NAME]. Mr. [RESPONDENT]’ complaint seeks actions from [RESPONDENT] which are not available to it under these regulations. The source of the alleged discrimination is the [NAME], which cannot be found to be a service. [ 5 ] [RESPONDENT]’s motion to strike the complaint is granted, and the complaint is dismissed in its entirety.

II. ISSUE(S) [ 6 ] This decision addresses the following issues: A) What principles guide the Tribunal in deciding whether to strike a human rights complaint on a motion? B) Is this motion an abuse of process? C) What principles guide the Tribunal in deciding whether a human rights complaint involves a “service” under section 5 of the Act? D) Does the act of “law making” include making regulations? E) Is the complaint a direct challenge to the [NAME]? F) Is it plain and obvious that the complaint has no reasonable chance of success and should be struck? III. PROCEDURAL HISTORY [ 7 ] In 2016, Mr. [RESPONDENT] filed two separate human rights complaints with the [NAME] Commission (the “Commission”) against [NAME] and [RESPONDENT]. [ 8 ] In September 2019, the Commission referred both complaints to the Tribunal for inquiry. The Commission is also a party to the complaints and is participating in the Tribunal’s inquiry. [ 9 ] In November 2019, after the Commission referred the complaints involving [RESPONDENT] and [NAME] to the Tribunal, the [NAME] [NAME] of [RESPONDENT] applied to the Federal Court for judicial review of the Commission’s decision to refer the complaint against [RESPONDENT]. In June 2021, the Federal Court dismissed [RESPONDENT]’s request. [ 10 ] In February 2020, Mr. [RESPONDENT], the Commission and [NAME] filed their initial Statements of Particulars (SOPs). [RESPONDENT] filed its SOP in February 2021. [ 11 ] The Tribunal has issued two rulings. In May 2020, the Tribunal decided to hear the two complaints together, and, in January 2021, the Tribunal ruled about the scope of the complaints. [ 12 ] From October 2021 to May 2023, the Tribunal held the proceedings in abeyance, at the parties’ request, while settlement discussions occurred. [ 13 ] In July 2023, the Tribunal Member who was initially assigned to this case was appointed to be a judge. The Tribunal’s Chairperson informed the parties that this matter would be reassigned to a different Tribunal Member but that there would be a delay until a Tribunal Member became available or new members were appointed. [ 14 ] In January 2024, Mr. [RESPONDENT] and [NAME] settled the complaint against [NAME]. The complaint against [RESPONDENT] continued. [ 15 ] In May 2024, [RESPONDENT] filed a motion to dismiss the complaint. It argues that the [NAME] define and restrict its role as the regulator of [RESPONDENT]’s blood system and that [RESPONDENT] does not provide a “service” or “services” under section 5 of the Act when it applies the [NAME]’ criteria and approves a policy or policy change involving the blood donation deferral period for MSM. For that reason, [RESPONDENT] submits that the complaint is beyond the scope of the Act and has no reasonable chance of success. [ 16 ] All parties requested that the Tribunal rule on the Respondent’s motion to strike before considering the other outstanding issues in the complaint. I agreed to proceed on that basis. [ 17 ] Mr. [RESPONDENT] is opposed to [RESPONDENT]’s motion and submits that it be dismissed. [ 18 ] The Commission submits that, given the circumstances of this complaint, the Tribunal should grant the motion.

IV. FACTUAL

BACKGROUND A. History of the blood system in [RESPONDENT] [ 19 ] [RESPONDENT]’s and the Commission’s materials describe the recent history of the blood system in [RESPONDENT] and its current regulatory structure. This is an important context for the complaint and for understanding [RESPONDENT]’s role, and the limits of its role, as the blood system’s regulator. I accept [RESPONDENT]’s and the Commission’s information about the blood system, as set out in their SOPs and their submissions, and as I have summarized below. [ 20 ] The existing blood system is built upon the foundation of a tragic crisis in the 1970s and 1980s, when [RESPONDENT]’s blood supply became infected with HIV and the hepatitis C virus. Tens of thousands of people became infected by receiving blood transfusions. [ 21 ] In 1993, the Government of [RESPONDENT] established a royal commission, known as the Krever Commission, to inquire into the crisis. The Krever Commission’s 1997 report described the event as a “nationwide public [NAME] calamity”. It recommended how [RESPONDENT]’s blood system should be reorganized and governed in the future. It called for the creation of a publicly administered blood supply system, with a national blood authority to run the system independently from government and with a government regulator providing oversight. The report recommended that the safety of the blood supply system be “paramount” (Commission of Inquiry on the Blood System in [RESPONDENT], Final Report, Part VI, at 1047–49). [ 22 ] In 1998, the Government of [RESPONDENT] and the provinces signed agreements to establish a blood system that includes many of the Krever Commission’s recommendations. The agreements have led to the blood system that currently exists. B. Governing legislation and the [NAME] [ 23 ] Human blood in [RESPONDENT] is regulated under the federal Food and Drugs Act (R.S.C., 1985, c. F-27) and the [NAME] that are made under the statute. According to the [NAME], [RESPONDENT] regulates the blood system by overseeing independent “establishments” that operate the system and conduct the “processing” of blood. For the purposes of this complaint, [NAME] is the [NAME] that conducts the processing of blood, which includes the collecting and testing of blood and the conducting of [NAME] suitability assessments ([NAME], section 1, definition of “processing”). [ 24 ] Judicial decisions confirm the division of authority between [RESPONDENT] and [NAME], and [RESPONDENT]’s circumscribed oversight role as the regulator for blood safety. [NAME] has complete management discretion over all operational blood system decisions and for creating and administering the blood screening system and policies under which blood [NAME] are accepted or rejected ( [COMPANY]/[NAME] v [NAME] , 2010 ONSC 4885, at paras 356–57, 364, 367 and 371; [NAME] v. [RESPONDENT] ([NAME]), 2017 FC 686, at para 32). [ 25 ] According to the [NAME], [RESPONDENT] must only consider “human safety” and “the safety of blood” in making decisions: A) [RESPONDENT] must authorize an [NAME] to process blood if doing so “will not compromise human safety or the safety of blood” ([NAME], section 7). B) [RESPONDENT] must authorize a significant change to an [NAME]’s authorization to process blood if the [NAME] has provided sufficient evidence that the change, or the way it implements the change, will not compromise human safety or the safety of blood ([NAME], section 9(1) and 9(2)). C) [RESPONDENT] can impose terms and conditions on [NAME], but only to prevent a compromise to human safety or the safety of blood ([NAME], section 13(1)). [RESPONDENT] can also remove a term or condition if it is no longer necessary to prevent a compromise to human safety or the safety of blood ([NAME], section 13(5)). [ 26 ] The [NAME] also define [NAME]’s authority: A) Before an [NAME] can make a significant change in how it processes blood, it must provide all relevant information for [RESPONDENT] to determine whether the change, or the way the change is implemented, could compromise human safety or the safety of blood ([NAME], section 9(1)). B) [NAME] must assess every [NAME]’s suitability to donate blood by a questionnaire, or by similar means, that obtains information to evaluate the [NAME]’ medical history, their test results and physical examinations, and their social history as needed to determine the presence of risk factors for diseases transmissible by blood ([NAME], sections 1, definition of “[NAME] suitability assessment”, 39 and 41(a)). C) [NAME] are considered unsuitable to give blood if [NAME]’s questionnaire or other screening tool indicates that human safety or the safety of blood could be compromised ([NAME], section 42). C. The blood donation deferral policy [ 27 ] The Policy that is the subject of this complaint consists of [NAME]’s [NAME] (the “Questionnaire”) and its [NAME] (the “Manual”). Using these resources, [NAME] assesses each [NAME]’s suitability and determines if human safety or the safety of blood could be compromised by their blood donation. [NAME] must obtain [RESPONDENT]’s approval for any changes to the Questionnaire or Manual. [RESPONDENT] must approve the proposed changes if they will not compromise human safety or the safety of blood ([NAME], section 9). [ 28 ] [NAME]’s [NAME] suitability criteria previously required that MSM defer their blood donations for a period of time following their last sexual contact with a man. The Questionnaire obtains information about the [NAME]’s sexual history and the Manual determines the [NAME]’s suitability or his requirement to defer the donation. [ 29 ] [RESPONDENT] has approved [NAME]’s requests to change the policy, both before and after Mr. [RESPONDENT] filed this complaint. The allegations in the [RESPONDENT]’s SOP involve [RESPONDENT]’s alleged discriminatory actions in relation to the Policy that was in effect in 2016 and its deferral requirements for MSM. The Policy has been replaced with a sexual behaviour-based screening tool that [NAME] uses to assess the suitability of all blood [NAME]. [ 30 ] Mr. [RESPONDENT]’ submissions refer to [NAME]’s updated screening tool and its “new policy”. However, the Tribunal has made no decisions to expand the scope of the complaint to include the updated blood [NAME] screening tool or the later changes to [NAME]’s Policy. These are disputed issues between the parties. [RESPONDENT] submits that Mr. [RESPONDENT] cannot expand the scope of the existing complaint by including these references in his submissions. The parties also agreed that I decide this motion before considering other motions to expand the complaint’s scope. [ 31 ] It is the SOPs that establish the terms of the Tribunal inquiry. [RESPONDENT] and the Commission frame their cases based on the allegations in Mr. [RESPONDENT]’ existing SOP. Therefore, this motion is determined based on the parties’ existing SOPs and the [NAME] policy that was in effect in when Mr. [RESPONDENT] filed his complaint in 2016. I consider the specific allegations in the original complaint to the Commission and the corresponding allegations that are included in Mr. [RESPONDENT]’ SOP, but I do not consider the allegations in Mr. [RESPONDENT]’ submissions that are not included in his SOP.

V. ANALYSIS [ 32 ] I have reviewed the parties’ materials and submissions for the motion. For the sake of efficiency, and because some of the arguments in the submissions are not relevant and do not assist me in deciding this motion, I will only address the arguments of the parties that I consider necessary, essential and relevant to my decision ( [NAME] v. [RESPONDENT] ([NAME] [NAME])  2012 FCA 159, at para 40; [RESPONDENT] v. [NAME] [RESPONDENT] , 2020 [NAME] 3 , at para 54 ). A. What principles guide the Tribunal in deciding whether to strike a complaint on a motion? [ 33 ] O n a motion to strike, a court or tribunal must assume the facts are true and must ask whether there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial ( R. v. [NAME] [RESPONDENT]., 2011 SCC 42 at para 21 ([NAME]) [ [NAME] ]). Evidence is not admissible, and the Tribunal must only strike particulars in advance of a hearing in the “clearest of cases” ( [NAME]. v. [NAME] [RESPONDENT] , 2023 [NAME] 23 [ [RESPONDENT] ] at para 17; [NAME] v. [NAME] [RESPONDENT] , 2020 [NAME] 27 at para 86). But even a complex and novel legal claim may properly be struck from a complaint if on a proper analysis of the law it is plain and obvious that the claim cannot succeed ( [NAME] at para 17, citing [NAME] v. [NAME] , 2012 BCSC 1589 at para 19 ). [ 34 ] A [RESPONDENT] must clearly outline the facts upon which they rely in making their claim. A [RESPONDENT] is not entitled to rely on the possibility that new facts may turn up as the case progresses. At the time of the motion, a [RESPONDENT] may not be in a position to prove the facts that they allege. They may only hope to prove them, but the facts must be asserted. The facts are the firm basis upon which the possibility of success of a claim must be evaluated. If they are not alleged, the exercise cannot be properly conducted ( [NAME] at para 22 ). B. Is [RESPONDENT]’s motion an abuse of process? [ 35 ] Mr. [RESPONDENT] submits that [RESPONDENT]’s motion unreasonably delays the Tribunal’s proceedings, is an abuse of process and prejudices his rights. He argues that many years have passed since he filed his complaint and that the motion is nearly identical to [RESPONDENT]’s previous unsuccessful application to the Federal Court for judicial review. [ 36 ] I do not agree with Mr. [RESPONDENT]’ submission about delay or with the characterization of [RESPONDENT]’s judicial review application. [ 37 ] There is no doubt that the time taken in addressing this complaint has been long. However, as detailed above, this proceeding has involved an application for judicial review, Tribunal rulings, an abeyance for settlement discussions and other procedural matters. I also note that all parties requested that this motion proceed.

For these reasons, I do not find that there has been an undue delay in the progress of this case. [ 38 ] I also do not accept that [RESPONDENT]’s motion is essentially a repeat of the Respondent’s application in 2019 to the Federal Court for judicial review. The Federal Court reviewed a different decision involving different issues and distinct legal considerations. [ 39 ] The issue before the Federal Court was whether the Commission’s decision to refer the complaint against [RESPONDENT] to the Tribunal for inquiry was reasonable. The Federal Court considered whether the Commission’s decision disclosed “any reasonable basis on the law or the evidence” for the referral to the Tribunal. The Federal Court decided that the Commission’s decision was reasonable ( [RESPONDENT] ([NAME] [NAME]) v. [RESPONDENT] , 2021 FC 594 , [ [RESPONDENT] FC ] at paras 43, 51 and 65). [ 40 ] In the Federal Court’s analysis of the Commission’s decision, it found that the Commission had been alert to [RESPONDENT]’s arguments about the complaint and engaged with them. The Federal Court also found that the decision’s analysis of the issues in the Commission’s internal assessment report was intelligible ( [RESPONDENT] FC, at paras 44–45 and 51). The Federal Court also found that the Commission’s decision was reasonable despite its failure to reconcile the decision to refer Mr. [RESPONDENT]’ complaint with a previous decision where the Commission did not refer a complaint involving arguable similar facts ( [RESPONDENT] FC , at paras 54–64). [ 41 ] Mr. [RESPONDENT]’ submissions refer to the Court’s finding that the Commission’s internal assessment report referred to “a ‘live contest’ as to the exact nature of the relationship between [RESPONDENT] and [NAME], which warrants further inquiry”. The Federal Court found that reference in the Commission’s decision to be intelligible ( [RESPONDENT] FC , at para 48). The Federal Court did not find that the relationship between [RESPONDENT] and [NAME] “warrants further inquiry” and did not consider whether [RESPONDENT]’s action constitute a service under section 5 of the Act. [ 42 ] The Federal Court’s decision to uphold the Commission’s referral decision does not limit the Tribunal’s choice of procedure for addressing a complaint. The Tribunal has the authority to determine its own process for deciding the issues in a human rights complaint. Tribunal proceedings must be fair, and they proceed as informally and expeditiously as the requirements of natural justice and the [NAME] Tribunal’s Rules of Procedure, 2021 (SOR/2021-137) (the “Rules”) allow. The Act and the Rules authorize the Tribunal to hear this motion about whether [RESPONDENT] has provided a “service” or “services” under section 5 of the Act (the Act, sections 48.9(1), 50(1), 50(2), and Rules 3(2) and 7). [ 43 ] I appreciate Mr. [RESPONDENT]’ submission that his recourse to a court challenge of the Policy at issue in his human rights complaint can be impractical. However, the Tribunal does not consider whether a [RESPONDENT] has alternative legal options when it determines the legal question of whether the allegations in a human rights complaint are beyond the scope of the Act. C. What principles guide the Tribunal in deciding whether a complaint involves a “service” under section 5 of the Act? [ 44 ] Services that are customarily available to the [NAME] public must be provided in a non-discriminatory manner. The first step in applying section 5 is to determine whether the “particular actions” complained of are “services” ( [NAME] v. [RESPONDENT] ([NAME] [NAME]) , 2008 FCA 170 [ [RESPONDENT] ] at paras 28 and 31) . [ 45 ] Not all government actions are “services” under section 5 of the Act. The fact that government actions are undertaken in the public interest does not make them “services” ( [NAME], at para 22) . “Services” contemplate something of benefit being “held out” as services and “offered” to the public ( [NAME], at paras 28, 31 and 33; [NAME], at para 40). Similarly, a “service” is characterized by its “transitive connotation”, in which it “passes from the [NAME] and has been held out to the public” ([NAME] /[NAME] , at para 98, citing [NAME] v. [NAME] of [NAME] , 1996 [NAME] 231 (SCC), [1996] 1 S.C.R. 571 [ [NAME] ] at para 55; [NAME] , at para 67). There is “a requisite public relationship between the [NAME] and the service receiver, to the extent that the public must be granted access to or admitted to or extended the service by the [NAME]” ( [NAME] , at para 55). [ 46 ] Even if a particular interaction has the hallmarks of a “service” relationship, the source of the alleged discrimination must be determined. A “service” may have occurred if it involved the conduct of [NAME] or the exercise of their discretion. But if the source is [NAME] applying legislative criteria, it is not a “service” under section 5 ( [NAME] v [RESPONDENT] (Minister of Citizenship and Immigration ), 2008 [NAME] 5 at paras 37–38 ; [NAME] of [RESPONDENT] v. [RESPONDENT] (Revenue Agency), 2012 FCA 7 at paras 5–6; [RESPONDENT] , at paras 40–41). [ 47 ] It is well established that the Tribunal does not have the jurisdiction to decide complaints that are direct challenges to legislation. Law-making is not a service customarily offered to the public, and legislation does not in and of itself constitute a “service” ([RESPONDENT] , at para 63, citing [RESPONDENT] ([NAME] Commission) v. [RESPONDENT] ([NAME] [NAME]) , 2018 SCC 31 ([NAME]), [2018] 2 SCR 230 [ [NAME] ], at paras 57–62) . [ 48 ] Where a statute has ambiguous language that can be interpreted in more than one way, the administering department must choose the interpretation that is most consistent with human rights law principles ( [NAME] , at para 63, citing [RESPONDENT] v. [NAME] [RESPONDENT] , 2014 [NAME] 1 [ [RESPONDENT] ], at para 102; [RESPONDENT] v. [RESPONDENT] , 2010 [NAME] 4 , at para 44, citing Council of Canadians with [NAME] v. [NAME], 2007 SCC 15 ([NAME]), [2007] 1 SCR 650). [ 49 ] The Tribunal’s task is to decide if a complaint constitutes a direct attack on legislation, or, conversely, if the complaint is concerned with acts of discrimination in the provision of administrative services ( [NAME] , at para 57). A tribunal considers the nature of the allegations, the wording of a [RESPONDENT]’s submissions and the relationship between the administrative [NAME] and the legislative provisions they are applying ( [NAME], at para 58). [ 50 ] The Tribunal must characterize a [RESPONDENT]’s allegations and determine what action, behaviour or practice they allege to be discriminatory. In this complaint, is it alleged that [RESPONDENT] decision makers engaged in specific discriminatory actions that occurred in the context of a relationship between a [NAME] and service recipient? Is it alleged that [RESPONDENT]’s acts involved an exercise of discretion? Does the [RESPONDENT] allege that [RESPONDENT] officials treated him in a discriminatory way? Or is the [RESPONDENT] taking issue with the criteria in the [NAME] that [RESPONDENT] is required to apply? ( [RESPONDENT] , at paras 39–42). D. Does “law making” include making regulations? [ 51 ] Yes. [NAME]’s power to make rules and regulations is a “subordinate law-making power”, in which a statute can set out the legislatures basic objects, and “most of the heavy lifting [gets] done by regulations, adopted by the executive branch of government under orders-in-council” ( [NAME], at para 71, citing Reference re Pan‑[NAME],  2018 SCC 48 ([NAME]), [2018] 3 SCR 189 at para 73). [ 52 ] A government department cannot be held accountable under the Act for a regulation “simply because it has been given by [NAME] the responsibility of administering the Act on the authority of which the Regulation was validly enacted by the Governor in Council” ( [RESPONDENT], at para 74, citing [RESPONDENT] ([NAME] [NAME]) v. [RESPONDENT] r, 1998 [NAME] 7409 (FCA), at para 4). [ 53 ] It would be an absurd result if a complaint targeting legislation was considered to be outside the Tribunal’s scope to decide. However, a challenge to regulations that are enacted under the same legislation, and without which the purpose and intentions of [NAME] could not be carried out, was considered to be within the Tribunal’s ambit and was a “service” customarily available to the public ( [NAME] , at para 74). [ 54 ] [NAME] that predate the Supreme Court of [RESPONDENT]’s decision in [RESPONDENT]/[RESPONDENT] also support the conclusion that a challenge to a regulation does not engage a service under section 5 of the Act ( [RESPONDENT] , at paras 69–70, citing [RESPONDENT] ([NAME] [NAME]) v. [RESPONDENT] , 1998 [NAME] 7409 (FCA) at paras 1 and 4–5; [NAME] of [RESPONDENT] v. [RESPONDENT] (Revenue Agency), 2012 FCA 7 , at para 7). [ 55 ] Mr. [RESPONDENT] submits that the Supreme Court of [RESPONDENT]’s decision in [NAME] and the Tribunal’s decision in [NAME] should be distinguished because they involve provisions in a statute and do not involve the exercise of discretion or the actions of a government official. [ 56 ] I do not agree that these decisions should be distinguished. In [NAME] , the Supreme Court of [RESPONDENT] considered a statute, whereas in [RESPONDENT] the Tribunal applied the reasoning from that decision, as well as from Federal Court of Appeal decisions, to a regulation. [ 57 ] The decisions establish a sound approach for determining whether a government decision maker’s action is a “service” under section 5 of the Act. To apply this approach, I consider the allegations in the complaint about [RESPONDENT]’s acts and the specific provisions of the [NAME]. I consider if the allegations in the complaint can be reasonably characterized as describing specific discriminatory acts, behaviours or practices involving discriminatory conduct that occur within a service relationship between [RESPONDENT] and Mr. [RESPONDENT]. I also consider if the allegations are more appropriately characterized as an application of legislative criteria to undisputed facts or, as in this case, an application of government regulations. My determination of whether the complaint involves a “service”, or “services”, under section 5 of the Act is grounded in this analysis. [ 58 ] The [RESPONDENT] also submits that the above decisions can be distinguished because they did not involve a service that is customarily available to the public. I understand that argument as focusing primarily on the availability of the action to the public, rather than on the nature of the action itself. [ 59 ] I do not agree that the decisions should be distinguished on that basis. The Tribunal must first consider whether any impugned action is a “service” under section 5 of the Act. If so, the service’s availability to the public can then be considered. If not, it precludes the consideration of whether the action is customarily available to the public. Without a finding that a “service” under section 5 of the Act has been provided, there cannot be a discriminatory practice under section 5 of the Act. E. Is the complaint a direct challenge to the [NAME]? (i) [RESPONDENT]’s actions as a regulator do not have “the transitive connotation” of a [NAME] holding out services to the public [ 60 ] The role of a regulator is distinct from that of an organization that engages directly with the public. In the case of [RESPONDENT] as the [NAME], as the [NAME] circumscribe them, its actions do not have the “transitive connotation” of a service passing from a [NAME] and being held out to the public, as the Supreme Court of [RESPONDENT] required, in [RESPONDENT], for the “anti-discrimination prohibitions” in human rights statutes to be engaged. The “requisite public relationship between a [NAME] and the service receiver” does not exist where [RESPONDENT] applies mandatory criteria to enact a blood donation policy that [NAME] prepared and that [NAME] must carry out by its engagement with prospective blood [NAME]. Because the [NAME] require [NAME] to be in the public-facing role of operating the blood system, [RESPONDENT], in its role of system regulator, is a step removed from holding out something of benefit as services and offering it to members of the public who wish to donate blood. [ 61 ] In its regulatory role, [RESPONDENT] is also a step further removed from the direct-to-the-public engaged role of the government organization in [NAME], in which the Federal Court of Appeal decided that [RESPONDENT] had not provided a “service” under section 5 of the Act. (ii) Analysis of the [RESPONDENT]’s allegations [ 62 ] A close reading of the original complaint and the SOP is necessary on this motion to characterize the allegations of discrimination and to determine the source of the alleged discrimination. [ 63 ] The complaint that Mr. [RESPONDENT] filed with the Commission alleges that the Respondent has acted in the following ways: A) It does not permit the [RESPONDENT] to donate blood for personal use or for transfusions for other people, and it forced him to adhere to the Policy (Complaint Form, Schedule A, at 1, first and third paragraphs). B) It denied services to the [RESPONDENT], and to others, in ways that Canadians commonly believe to be their right (Complaint Form, Schedule A, at 2, first and second lines). C) It supports a policy that has the effect of prohibiting the [RESPONDENT] and others from donating blood; of imposing celibacy; of presuming a positive status for HIV/AIDS; and of preventing the [RESPONDENT] of giving blood like other Canadians can (Complaint Form, Schedule A, at 2, section 1). D) It contravenes the Act and fails to protect the [RESPONDENT]’s rights to equality (Complaint Form, Schedule A, at 2, section 2). (emphasis added ) [ 64 ] The SOP repeats the allegations and adds: A) It erases, rejects and denies the [RESPONDENT]’s satisfaction and pride (SOP, at 7, last paragraph). B) It categorizes or labels the [RESPONDENT] and others as sub-normal or second-class citizens (SOP, at 10, second paragraph). C) It humiliates, embarrasses and stigmatizes the [RESPONDENT], and compromises his daily life (SOP, at 12, last paragraph). D) It implements a policy that causes the [RESPONDENT] to feel worthless or valueless (SOP, at 15, second to last paragraph). E) It causes the [RESPONDENT] to be seen as a pariah and pulls him back into the queer closet of the past (SOP at 15, last paragraph). (emphasis added) [ 65 ] I have considered all the allegations in the original complaint and in Mr. [RESPONDENT]’ SOP. I find on the balance of probabilities that they cannot be reasonably characterized as referring to particular actions, behaviours or practices of [RESPONDENT] representatives who are holding out something of benefit as a service and offering it directly to prospective blood [NAME]. [ 66 ] For example, Mr. [RESPONDENT] has alleged that he is “not permitted” to donate blood and that [RESPONDENT] discriminates by “forcing him to adhere” to the Policy. However, I find that these allegations cannot reasonably be characterized as particular acts by [RESPONDENT] representatives of directly withholding the opportunity to give blood from a person who wishes to receive this benefit. No facts have been alleged to support an allegation of that nature, and, under the [NAME], [RESPONDENT] cannot engage in the type of public relationship between a [NAME] and the service receiver that is required to be a service under the Act. [ 67 ] Similarly, the allegations in the SOP that [RESPONDENT] discriminated against Mr. [RESPONDENT] by “supporting” the Policy, or that it acted “in contravention” of the Act, do not invoke specific acts that occurred in a relationship that has the “transitive connotation” of a benefit passing between a [NAME] and a service recipient. [ 68 ] Other allegations refer to the ways that the Policy itself has affected the [RESPONDENT]. For example, the [RESPONDENT] alleges that he was “left feeling humiliated, embarrassed, stigmatized and abnormal in the eyes of [COMPANY] because of [RESPONDENT]’s outdated policy” (SOP, at 12, last paragraph). However, this wording of the allegation makes clear that the alleged discriminatory effect is “because of” the Policy and not due to an alleged act, behaviour or practice of a [RESPONDENT] representative in the delivery of a service. [ 69 ] Mr. [RESPONDENT] submits that [RESPONDENT] has not provided evidence in support of its decisions about the Policy. I do not accept this submission. As noted above, the facts in the complaint are assumed to be true on a motion to strike, and evidence to support or refute an allegation is not admissible. [ 70 ] Mr. [RESPONDENT] also argues that the Respondent is required to consider the [NAME] and the Act when it acts or exercises discretion. However, I find that the complaint does not include allegations of particular actions or the conduct of [RESPONDENT] representatives applying discriminatory interpretations of the [NAME] when it approved [NAME]’s Policy. [ 71 ] The notion that the Act takes primacy where it is inconsistent with another statute does not inform the interpretation of the scope of section 5 of the Act. The meaning of section 5 must be determined on its own as a matter of statutory interpretation ( [NAME]/[NAME] , at para 94). [ 72 ] For the above reasons, I find, on the balance of probabilities, that the allegations in the complaint cannot be reasonably characterized as referring to specific acts, behaviour or conduct on the part of [RESPONDENT] in a role of a [NAME]. (iii) Analysis of the [NAME] [ 73 ] As outlined above, the [NAME] set out the division of authority for the blood system between [RESPONDENT] and [NAME], and they mandate the criteria that [RESPONDENT] must apply in its decision-making. On these critical issues related to this complaint, the [NAME] do the “heavy lifting” that the Supreme Court of [RESPONDENT] described in Reference re Pan‑[NAME], 2018 SCC 48 ([NAME]), [2018] 3 SCR 189 . [ 74 ] I must consider the relationship between [RESPONDENT] and the [NAME] it must apply ( [RESPONDENT]/[NAME] , at para 58). [ 75 ] [NAME] is responsible for the processing of blood, including the conducting of [NAME] suitability assessments, and determining if a [NAME] is unsuitable to donate blood. [NAME] develops the tools for assessing suitability and submits them to [RESPONDENT] for approval. [ 76 ] The [NAME] also impose stringent criteria for determining a blood [NAME]’s suitability, and they require [NAME] to implement a policy for doing so. [NAME] must determine the presence of risk factors for diseases transmissible by blood, and it must conclude that a [NAME] is unsuitable if the screening for disease risk factors indicates that human safety or the safety of blood could be compromised ([NAME], sections 1, 41, 42). For any significant changes, [NAME] must obtain [RESPONDENT]’s approval ([NAME], section 9). [ 77 ] The [NAME] also require [RESPONDENT] to apply stringent and mandatory criteria when it considers a change to the processing of blood. [RESPONDENT] must authorize the changes that [NAME] proposes if it is satisfied that the changes “will not compromise human safety or the safety of blood” ([NAME], section 7). It can only impose terms if they would prevent a compromise to human safety or the safety of blood. The [NAME] do not permit [RESPONDENT] to consider other factors. [ 78 ] There is no ambiguity in the [NAME]’ language. When [RESPONDENT] considers a [NAME] request for a policy change, it must only consider if the change will affect human safety and the safety of blood. Consequently, unlike in [RESPONDENT] , I find there is no opportunity for [RESPONDENT] to interpret the [NAME] in different ways and to choose an interpretation that is most consistent with human rights principles. The [NAME] do not allow [RESPONDENT] to exercise such discretion or to consider other factors. [ 79 ] The Commission’s submissions characterize the complaint as requiring [RESPONDENT] to play an additional role that the [NAME] do not permit. According to the Commission, Mr. [RESPONDENT] argues that [RESPONDENT] be required to ensure that [NAME]’s policy for assessing the suitability of blood [NAME] be more inclusive towards MSM without compromising safety. I agree with this characterization of the complaint and with the submission that the [NAME] do not permit [RESPONDENT] to play this additional role. Doing so would require an amendment to the [NAME], and such action would engage the law-making function, which is not a “service” under section 5 of the Act. [ 80 ] I have also considered Mr. [RESPONDENT]’ submissions. Mr. [RESPONDENT] submits that the complaint does not just relate to a challenge to regulations. I do not agree. First, I find that the complaint does not allege that [RESPONDENT] acted outside the role that the [NAME] require. Second, Mr. [RESPONDENT]’ submissions appear to suggest that [RESPONDENT]’s role of approving changes that [NAME] requested, of placing conditions on [NAME] and of [NAME] having to satisfy [RESPONDENT] that any proposed changes are safe, are all roles that are outside the scope of the [NAME]. However, as explained above, the [NAME] do impose these requirements on [RESPONDENT] and [NAME]. [ 81 ] Mr. [RESPONDENT] also submits that “legislation cannot be read on its own” and that [RESPONDENT] should have made efforts to avoid discriminating against [NAME] who are MSM. However, the Tribunal must consider what the [NAME] require [RESPONDENT] to do and not what the Regulations should require [RESPONDENT] to do. [ 82 ] As noted above, the [NAME] included many of the Krever Commission’s recommendations. Expanding upon the [NAME]’ clear, stringent and mandatory focus on the safety of the blood supply and human safety would be inconsistent with the Krever Commission’s recommendation that the safety of the blood supply system be “paramount”. [ 83 ] Based on the above analysis, I find that the “source” of the alleged discrimination that this complaint describes is in the [NAME]. Because law-making includes making regulations, this complaint does not challenge a service within the meaning of section 5 of the Act. F. Is it plain and obvious that the complaint has no reasonable chance of success and should be struck? [ 84 ] Yes. For the above reasons, I decide as follows: A) On this motion, I have assumed the facts that the [RESPONDENT] has alleged to be true. I have considered the allegations, and I find they do not impugn any action, act of discretion, conduct, behaviour or practice of the Respondent acting in a role of a [NAME]. B) The [RESPONDENT] and Respondent do not have the relationship of [NAME] and service receiver that is required for a service to fall under section 5 of the Act. C) The source of the alleged discrimination is in the [NAME]. Consequently, any alleged acts of discrimination in the complaint derive only from the authority of the executive branch of government to make regulations. Because the making of laws and regulations is not a “service” under section 5 of the Act, the Tribunal does not have the jurisdiction to decide complaints that are a direct challenge to a regulation. D) It is plain and obvious that the allegations in the complaint do not have a reasonable chance of success, and, therefore, the complaint should be struck in its entirety. [ 85 ] As in [NAME] , the [NAME] reflect policy choices with which the [RESPONDENT] may disagree, but the Tribunal does not have the authority to second-guess the choices that the executive branch of government makes by enacting regulations that the Respondent must apply. Nor does the Tribunal have the authority to expand the regulatory obligations of the blood system’s regulator when the regulator does not have the type of service relationship with the [RESPONDENT] that the Act authorizes the Tribunal to consider.

VI.

ORDER [ 86 ] The Respondent’s motion is granted. This complaint is struck in its entirety. Signed by [NAME] Tribunal Member Ottawa, Ontario December 10, 2024 [NAME] Tribunal Parties of Record File No. : T2425/8419 Style of Cause: [RESPONDENT] v. [RESPONDENT] of the Tribunal Dated: December 10, 2024 Motion dealt with in writing without appearance of parties Written representations by: [RESPONDENT] , Self-represented [RESPONDENT], for the [NAME] Commission [RESPONDENT] and [RESPONDENT] , for the Respondent