Sumitha Marakkaparambil v. Ontario (Health and Long-Term Care), 2007 HRTO 24

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sumitha Marakkaparambil

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Her Majesty the Queen in Right of Ontario as represented by The Minister of Health and Long-Term Care

Respondent

INTERIM DECISION

Adjudicator: David A. Wright Date: July 26, 2007 Citation: 2007 HRTO 24 Indexed as: Marakkaparambil v. Ontario (Health and Long-Term Care)

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

APPEARANCES

Sumitha Marakkaparambil, Complainant ) Rafi Veetil, Representative Ontario Human Rights Commission ) Brian Smith and ) Cathy Pike, Counsel Her Majesty the Queen as Represented ) Sean Hanley, Counsel by the Ministry of Health and Long-Term Care, ) Respondent ) )

INTRODUCTION

1This Interim Decision determines a motion brought by the Respondent Crown for an order dismissing this complaint without further hearing, as well as a motion by the Complainant for a publication ban on details that would identify her.

2The complaint alleges that Ontario’s system of allocating funded medical residency positions is discriminatory on the grounds of place of origin, race, creed, ancestry and ethnic origin. Obtaining a residency position is necessary for a medical school graduate to obtain a licence to practice medicine. The alleged discrimination results from the fact that graduates of accredited medical schools, all of which are in Canada and the United States, have access to a larger pool of funded residency positions, with different requirements for eligibility, than graduates of other medical faculties. The complaint focuses on the allegation that this results in systemic discrimination against those whose place of origin is outside Canada and the U.S., since it is alleged that people tend to receive their education in their place of origin.

3In its motion, the Crown argues that the findings of the Court of Appeal in two unsuccessful challenges under s. 15 of the Canadian Charter of Rights and Freedoms (“Charter”) to limitations on access to medical training for graduates of non-accredited schools make it plain and obvious that this complaint cannot succeed, because the same legal test applies to the analysis under the Human Rights Code, R.S.O. 1990, c. H.19 (the ”Code”).

4For the reasons that follow, I find that while the decisions relied upon by the Respondent will be important precedent in the resolution of this case on the merits, it is not plain and obvious that the complaint cannot succeed. The approach to analyzing whether there is discrimination is comparative and purposive, and depends upon the nature of the alleged discrimination and the factual, social, and legal context. While the previous cases alleged discrimination based upon place of medical training, this complaint focuses, broadly stated, on the impact of the program on immigrants to Canada. Moreover, the pleadings include allegations about the program and relevant context that differ from those considered in the previous judgments. In addition, the application of the contextual and purposive analysis for discrimination under the Code (as opposed to under the Charter) may affect the result. Accordingly, I have concluded that it is not plain and obvious that the complaint will fail and the Crown’s motion is therefore dismissed.

5The Complainant’s motion is also dismissed. Not only is there no evidentiary foundation for the request, since the Complainant chose not to testify or file an affidavit in support of the request, but there are no interests at stake that would justify the partial publication ban sought.

BACKGROUND

6The Crown’s motion was argued on the basis of the pleadings of the Complainant and the Commission. As is proper in such circumstances, the motion will be determined on the assumption that the allegations in these pleadings can be proven. Counsel for the Respondent emphasized that the Crown disputes some of the assertions in the pleadings, as it is entitled to do, and the Tribunal’s description of the background to the motion is made in this context. In other words, the Tribunal makes no findings of fact at this stage.

(i) Dr. Marakkaparambil

7The Complainant, who was born and brought up in Kerala, India, graduated from Calicut University there in 1996. She completed a one-year rotary internship in India between 1996 and 1998 and worked for two months as a resident medical officer there. She immigrated to Ontario with her family in 1998.

8The pleadings allege that between 1998 and 2003, the Complainant attempted to obtain access to the medical profession in Ontario. During this period, according to the pleadings, she passed various examinations demonstrating her skills and qualifications. In March 1999, she passed the Medical Council of Canada Evaluating Exam (“MCCEE”) on her first attempt. In May 2000, she passed the Medical Council of Canada Qualifying Examination, Part I (“MCCQE1”) on her first attempt. In December 2000, she passed the Medical Council of Canada Qualifying Examination, Part II (“MCCQE2”) on her first attempt. However, she was unable to obtain a residency position in Ontario, it is alleged, as a result of the Ontario International Medical Graduate Program described below.

9According to the Commission’s pleading, the MCCQE1 “is designed to assess the competence of candidates with respect to the knowledge, clinical skills, and attitudes expected of medical graduates entering supervised practice in Canada”. The MCCQE2, it states:

…was first introduced in or around 1992. It is an objective-structured clinical examination in which candidates attend a series of clinical stations, where they are expected to interact with standardized patients in the same way that they interact with actual patients. The MCCQE2 is designed to assess the competence of candidates, specifically the knowledge, skills and attitudes essential for medical licensure in Canada. Candidates are not eligible to take the MCCQE2 until they have completed a minimum of 12 months of postgraduate clinical training, in Canada or elsewhere. As a result, Canadian and American Graduates typically do not attempt the MCCQE2 until the second year of their residencies, at the earliest.

10In 2003, the Complainant was accepted for a two-year residency at the Urban Family Medicine Program at the University of Manitoba. She completed her residency in Manitoba in 2005, wrote the certification examination, and now practices in Ontario.

(ii) The International Medical Graduate Program

11The pleadings allege that the Respondent has required persons to complete a period of postgraduate medical education, commonly known as a residency, before becoming registered with the College of Physicians and Surgeons of Ontario to carry on the independent practice of medicine in Ontario. The government determines how many residency positions are available in any given year and funds many of these positions. It is alleged that the Respondent created and funded a pool of residency positions reserved exclusively for graduates of accredited medical schools, all of which are in Canada and the United States, and entered into reciprocal agreements with other jurisdictions to ensure that all graduates of such programs could be matched directly into funded residency placements.

12Graduates of internationally recognized medical schools in countries other than Canada and the United States (“International Medical Graduates” or “IMGs”), the pleadings allege, were required to compete against each other for a limited number of spaces in the Ontario International Medical Graduate Program (the “OIMGP”). In 2000-01, there were 24 spots in this program for 266 applicants and in 2001-02 there were 36 spots for 276 applicants. In 2002-03 there were 50 spots for 336 applicants and in 2003-04 there were 50 spots for 412 applicants. Those who successfully completed the OIMGP could then apply for funded residency positions. While the Complainant applied to this program on four occasions, in 1999, 2000, 2001 and 2002, she did not rank high enough to obtain entrance.

13Finally, the pleadings allege that changes to the manner in which IMGs access residency positions were announced in June 2006, giving IMGs the ability to apply directly to obtain funded residency positions from a sequestered pool of such positions that are created by the Respondent and reserved exclusively for IMG candidates.

ANALYSIS

(i) Jurisdiction of the Tribunal to Dismiss the Complaint at a Preliminary Stage

14The Commission’s general position is that the Tribunal does not have the jurisdiction to dismiss a complaint at a preliminary stage, as set out in Braithwaite v. Ontario (Chief Coroner), 2005 HRTO 31 (at para. 8). However, the Commission accepted that this motion should be determined on the basis of the test set out in Braithwaite, supra, namely that the complaint should be dismissed if it is “plain and obvious” that it will fail. (at para. 13) The Complainant argued that the Tribunal cannot dismiss a complaint at this stage because of s. 39 of the Code, which requires that the Tribunal hold a hearing into a referred complaint.

15Since I have found that it is not plain and obvious that the complaint will fail, it is not necessary to resolve this issue. I will proceed on the assumption that the Tribunal has jurisdiction to dismiss a complaint if it is plain and obvious that it could not succeed.

(ii) The Jamorski and Ramlall Decisions

16The Respondent relies primarily upon two Charter cases to support its contention that the complaint should be dismissed: Jamorski v. Ontario (Attorney General) (1988), 64 O.R. (3d) 162 (C.A.), and Ramlall v. Ontario, (11 February 2005), Toronto, 04-CV- 271819SR (Ont. S.C.J.), aff’d [2005] O.J. No. 2836 (C.A.).

17In Jamorski, supra the Court of Appeal held that the limitations on access of international medical graduates to postgraduate training and on access to the profession did not violate s. 15. At the time, the final stage prior to obtaining admission to the medical profession was called an “internship”. As with the present program, graduates of unaccredited medical schools had to compete for access to a pre-internship program, in which there were a limited number of spaces, while graduates of accredited schools had direct access to a different and larger pool of internship positions. The record in the case established that the reasons for implementing the pre-internship program included, in particular, a wide variation in the levels of competence of graduates of unaccredited medical schools: see p. 165.

18Jamorski, supra was decided prior to the Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, which established the enumerated and analogous grounds approach to s. 15. The analysis focused on alleged discrimination “between the graduates of accredited medical schools and the graduates of unaccredited medical schools”, and it is not clear from the judgment whether the applicants themselves had a place of origin inside or outside Canada. The Court found that the graduates of unaccredited medical schools were not “similarly situated” to graduates of accredited schools, noting that their system of medical education was not known to the Ontario authorities who were required to regulate it. It also found that there was nothing “invidious or pejorative” about the system, noting that it was not argued that it was “anything other than an ongoing, sophisticated, bona fide system of assessing medical schools”. Accordingly, the Court found no violation of s. 15.

19Ramlall, supra, involved a motion to strike out a Statement of Claim against the Crown, on the basis that it established no cause of action, was an abuse of process, and was frivolous, scandalous and vexatious. The plaintiff, who obtained his undergraduate degree from the University of Western Ontario and his medical degree from the University of Santiago, claimed damages in the amount of $10,000,000, arguing that his Charter rights under ss. 6, 7 and 15 were violated as a result of his denial of entry into the medical residency training program. The Statement of Claim stated that the government program “rendered plaintiff unemployable, unable to earn a living in contrast to Charter guarantees”.

20In her endorsement, Horkins J. determined that it was plain and obvious that the claim could not succeed. First, she found, the plaintiff had previously brought an application for judicial review of his denial of admission to the program, which had been dismissed, and he was bound by the principles of cause of action estoppel from challenging the program in a separate proceeding. Second, she found, it had been established that the law is settled that the facts of the case do not constitute a breach of the Charter, relying upon Jamorski, supra, and Safai-Naini v. Quebec (Attorney General), [2002] Q.J. No. 1392 (Sup. Ct.). The Motions Judge emphasized that the Court in Jamorski, supra, had found that “there is no constitutional right to practice medicine” (para. 37). The appellant, who was self-represented, appealed but failed to appear at the Court of Appeal hearing. The Court of Appeal dismissed the appeal based upon the plaintiff’s non-attendance and “the absence of any merit in the appeal”.

21As a result of a question I asked during oral argument about whether the plaintiff in Ramlall, supra had relied upon s. 15 of the Charter, counsel for the Respondent provided me with a copy of Ramlall’s Statement of Claim. The claimant did rely upon s. 15 and made the allegation that the program discriminates against foreign-trained medical graduates. However, the applicable issues and analysis, and alleged changes in the program, the social context and the jurisprudence since Jamorski, supra were not articulated in the claim in the detailed manner in which they have been in the pleadings and submissions in this case.

22Perhaps most significant, the alleged discrimination in Ramlall, supra was not articulated in terms of the ground of place of origin, nor any of the other grounds asserted here. The focus of the claim, as in Jamorski, supra was on alleged discrimination as between graduates of different medical schools. Indeed, while the place of origin of the plaintiff is not set out in either the pleading or the judgment, it is clear that Ramlall attended a Canadian university and then went to a foreign university, and was therefore in a different position from the Complainant, who immigrated to Canada after obtaining all her university training in her place of origin.

(iii) The Approach to Finding Prima Facie Discrimination Under the Code

23The parties disagree on the proper approach to finding whether there has been prima facie discrimination under the Code and therefore on the effect of the Jamorski, supra and Ramlal, supra cases. The Crown argues that where the alleged discrimination occurs in services provided by means of government policy, the analysis of discrimination is the same under the Code as under s. 15 of the Charter. Accordingly, it submits, the s. 15 framework set out in Law v. Canada, 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 applies and a previous s. 15 decision necessarily determines a Code complaint on the same issue. The other parties take the position that Law, supra does not apply and that differential treatment on a prohibited ground automatically leads to a finding of prima facie discrimination under the Code. They say that for this reason, previous decisions on the Charter are not applicable to the question of whether there is prima facie discrimination under the Code. The resolution of this motion therefore requires an analysis of the Law, supra decision and its application to statutory human rights claims.

(a) The Law Decision

24In Law, supra the Supreme Court of Canada reformulated the purposive, contextual approach to determining if a law or government program violates s. 15, the constitutional guarantee of equality without discrimination. Writing for the Court, Iacobucci J. discussed, at paras. 23-39, the Court’s prior jurisprudence which had established three broad inquiries for determining whether “discrimination” exists within the meaning of s. 15. The first is whether the impugned law makes a formal distinction or fails to take into account a claimant’s already disadvantaged position within Canadian society. The second is whether the differential treatment is on the basis of one or more enumerated or analogous grounds. The third is whether there is substantive discrimination, “bringing into play the purpose of s. 15(1) of the Charter in “remedying such ills as prejudice, stereotyping, and historical disadvantage”.

25With regard to the final inquiry into substantive discrimination, Iacobucci J. emphasized the purpose of the equality guarantee in promoting human dignity. He described the meaning of human dignity in this context as follows, at para. 53:

…the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect or self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?

26The judgment in Law, supra set out various guidelines relevant to whether there is substantive discrimination. Although acknowledging that other factors may be relevant in other cases, Law, supra identified four contextual factors applicable at the third stage:

(a) Pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group at issue

(b) The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity or circumstances of the claimant or others

(c) The ameliorative purpose or effects of the impugned government action upon a more disadvantaged person or group in society

(d) The nature and scope of the interest affected by the impugned government action.

27Justice Iacobucci noted that the requirement to demonstrate an infringement of the claimant’s dignity interest will often be satisfied “on the basis of judicial notice and logical reasoning alone” (paras. 77-79), that the purposive analysis does not require “that the claimant prove matters which cannot reasonably be expected to be within his or her knowledge” (paras. 80-81), and that in some cases a claimant may not have to focus the purposive analysis on more than one factor (para. 82).

28The submissions of the parties do not, in my view, fully take into account the nuance of the Law analysis. Both the Commission and the Respondent referred to the “Law test” throughout their submissions but in their descriptions of Law, supra failed to fully address the purposive and contextual approach that the decision articulated. In Law, supra the Court was careful to emphasize that it was not establishing a “fixed and rigid formula” and stated that its goal was to avoid the “pitfalls of a formalistic or mechanical approach”: para. 88. Similarly, the Commission suggested in its submissions that Law, supra establishes a “need to show historical disadvantage” or requires “proof of injury to dignity”. In fact, the Supreme Court of Canada was careful to emphasize that its framework does not require proof of historical disadvantage and that this is merely one factor that is considered in the analysis: see para. 65 of Law, supra and Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835 at para. 20. While a claimant must demonstrate that there is injury to dignity in the sense of a conflict with the purpose of s. 15(1), this is shown through evidence and logical reasoning relating to the applicable social and statutory context and consideration of the purpose of the guarantee of substantive equality. It is not a requirement that there be direct evidence of effects on the claimant’s individual dignity, as that word is often understood in everyday language.

(b) The Application of Law Under the Human Rights Code

29The Commission submits that Law, supra should not be applied to cases under the Code. It argues that statutory human rights jurisprudence requires only differential treatment on a prohibited ground of discrimination, citing for this proposition Ontario Human Rights Commission v. Simpson Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (“O’Malley”), British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (“Grismer”).

30The Crown relies upon Ontario Secondary School Teachers’ Federation v. Upper Canada District School Board (2005), 2005 CanLII 34365 (ON SCDC), 78 O.R. (3d) 194 (Div. Ct.) (“OSSTF”). This case involved a judicial review of the decision of a board of arbitration under a collective agreement, which had found that the Law, supra analysis applied to the determination of whether a collective agreement provision according certain parental leave benefits to adoptive, but not biological parents was discriminatory.

31After acknowledging and analyzing the debate in the jurisprudence about the application of Law, supra Swinton J. on behalf of the Court emphasized that the Code and Charter cases had been extensively influenced by each other, in particular in interpreting the concepts of equality and discrimination. She noted that both enactments pursue the same objectives. Accordingly, she found that the Law, supra approach applies in some Code cases:

[28] In my view, the arbitration board in this case did not err in applying the analysis used in Law. I agree with the observations on Law made by Madam Justice Greckol of the Alberta Court of Queen’s Bench in the Gwinner v. Alberta (Minister of Human Resources and Employment) case, 2002 ABQB 685, [2002] A.J. No. 1045, 217 D.L.R. (4th) 341 (Q.B.)), which was affirmed by the Alberta Court of Appeal and cited earlier in these reasons. In that case, she was determining whether a government assistance programme for widows, but not divorced and single women, was discriminatory. In her view, the application of Law is appropriate in some cases interpreting human rights legislation, although a decision maker should always be aware of the difference in the language of the Charter and the human rights codes. As she stated at para. 103:

The Law analysis is particularly applicable in this case, where there is a human rights equality challenge to legislation which sets up a government program of financial support that is alleged to be discriminatory. Here, as in Law, the government raises a serious question as to whether the dignity interest of the Claimants is engaged.

32The Court also found that Law, supra is consistent with the approach taken in two Supreme Court cases that determined whether benefit programs were discriminatory under statutory human rights legislation: Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219 and Gibbs v. Battlefords and District Co-Operative Ltd., 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566.

33The Commission took the position that OSSTF, supra, should not be followed. In oral argument, counsel for the Commission also submitted that OSSTF, at para. 28, suggests that the Law, supra analysis applies only to financial benefits and that therefore it should not be applied to this scheme, which relates to access to the medical profession.

34The determination by the Divisional Court in OSSTF that the Law, supra framework applies to Code challenges to government programs or benefit schemes is binding upon me. Moreover, it reflects the approach taken by most courts to the issue. Even the B.C. Court of Appeal decision in Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601, relied upon by the Commission as contrary authority, only questioned the application of Law, supra to cases without “governmental overtone” (para. 38).

35I do not accept the Commission’s argument that there is a distinction between financial and other programs for the purposes of whether Law, supra applies. In my view, OSSTF establishes that where there is a challenge to a government benefit plan or scheme, the Law framework of analysis applies. On the other hand, the Law analysis may well not be applicable when analyzing specific actions or individual decisions that are alleged to be discriminatory, as opposed to legislation or a government policy or program.

36OSSTF, supra also establishes that the application of the purposive and contextual Law framework will not necessarily involve the same considerations or lead to the same result under the Code and the Charter. The Divisional Court noted at para. 28 that a decision maker should take into account the differences in language of the Code and the Charter. It flows from this that the different structures and spheres of application of the two enactments, the prior Code jurisprudence and other considerations unique to the statutory Code context may also be factors in the analysis. Moreover, in Gwinner, supra, cited with approval in OSSTF, supra the Court emphasized (at para. 103) that “flexibility must be maintained and (at para. 104) that a full application of the third stage of analysis will often “neither be necessary nor appropriate” under the Code.

37This is clear from the Divisional Court’s application of Law, supra in OSSTF, supra itself. In that case, the applicant challenged the impugned collective agreement provision under both the Code and s. 15 of the Charter. Although the Court applied the Law framework to both, it analyzed whether there was discrimination pursuant to the Code (at para. 36) separately from whether there was discrimination under the Charter (at paras. 39-40), although applying many of the same considerations to both. Accordingly, while in many cases, the third stage of analysis will lead to the same result under the Charter and the Code, OSSTF, supra makes clear that this is not a universal rule. The analysis is conducted separately under the Code and the Charter, even where the same program is being challenged under both in the same litigation.

38The Crown submits that if a program has been found not to be discriminatory under the Law framework in a Charter case, the Tribunal must, as a matter of logic and its duty to follow the decisions of a higher court, dismiss a similar claim under the Code. The reasoning and structure of analysis in OSSTF, supra show that this is not the case. Moreover, even if the Code analysis were exactly the same as under the Charter, I would still need to consider whether the framing of the claim and the facts alleged raise meaningful differences that might realistically lead to a different result, given the previous decisions.

(iv) Whether It Is “Plain and Obvious” That This Complaint Cannot Succeed

39With this background, I must determine whether it is “plain and obvious” that an application of the Law framework in the Code context would result in a dismissal of this complaint. For three reasons, I find that these cases do not make it plain and obvious that this complaint will fail. First, the facts, grounds and nature of discrimination and social context alleged by the Commission and the Complainant raise issues not considered in either case. Second, Jamorski, supra and Ramlall, supra do not include an explicit and detailed application of the Law framework and the current s. 15 Charter jurisprudence. Third, the statutory context of the Code may affect the application of the Law analysis in these circumstances.

(a) The Nature of the Discrimination Claim and Factual Differences

40Here, there are differences in the nature of the discrimination alleged, as well as factual and contextual allegations that appear not to have been made in the earlier cases. Most important, central to the alleged violation of the Code here, unlike in Jamorski, supra or Ramlall, supra is the assertion that people generally obtain their education in their place of origin. This challenge focuses not on place of medical degree, but on the relationship between that factor and the protected ground of place of origin. The ground alleged and the comparative approach is central to the analysis under the third stage of Law, supra. The allegation of systemic discrimination based upon place of origin appears not to have been made in either previous case.

41Moreover, all parties agree that the program has changed since Jamorski, supra. The Complainant’s representative also alleges changes in the social context since it was decided including the changes in supply and demand for health care and evolution in Canadian society. The Complainant has allegedly completed clinical testing equivalent to that of graduates of North American schools that did not exist at the time Jamorski, supra was decided. While Ramlall, supra was decided relatively recently, the Statement of Claim and the endorsement suggest that some of these factual allegations and alleged changes since Jamorski, supra were either not made or not brought to the Court’s attention.

(b) The Evolution of the Jurisprudence

42Jamorski, supra was decided before Andrews, supra and Law, supra and the Court therefore did not apply the effects-based approach to discrimination: see also the observation to this effect in Bitonti v. British Columbia (Ministry of Health) (No. 3) (1999), 1999 CanLII 35189 (BC HRT), 36 C.H.R.R. D/263 at para. 183 (B.C.C.H.R.). To the extent that the analysis included considerations similar to the Law factors, the Court focused primarily on purpose rather than effects, and I do not believe that the approach would be the same today. While Ramlall, supra was decided after Law, supra the contextual and comparative approach was not expressly argued or applied; the case was decided on cause of action estoppel, the previous jurisprudence, and the absence of a general right to practice medicine in the Charter.

(c) Application of the Law Analysis Under the Code

43Third, the nature of the application of the Law analysis under the Code may well affect the resolution of this case. It is not plain and obvious that the determination of whether there is prima facie discrimination under the Code would be the same as under the Charter in these circumstances. This is so in particular because the jurisprudence on the manner of application of Law, supra under statutory human rights enactments is in its infancy. As the Gwinner, supra and OSSTF, supra cases make clear, the statutory context, purposes, and jurisprudence under the Code form part of the analysis when the Law, supra framework is applied in the Code context.

44Of course, Jamorski, supra and Ramlall, supra will be important considerations in the Tribunal’s analysis once the evidence and argument have been heard. None of the above points are meant to suggest that the Tribunal has made a decision about their precedential value or the weight to be given to the analysis contained in them. I merely conclude that they do not lead to the result contended by the Crown, that it is plain and obvious that this complaint cannot succeed.

(v) The Complainant’s Motion for a Partial Publication Ban

45During the Pre-Hearing Conference Call in this matter, the Tribunal held that all preliminary motions would be heard orally on June 19 and 20, 2007 with the exchange of materials prior to these dates. The Complainant’s representative advised the Respondent and the Tribunal during the hearing on June 19, 2007 that the Complainant wished to seek a partial publication ban. As he was not prepared to make full submissions on that day, a schedule was established for the preparation of written submissions and affidavit evidence, if desired. I advised him that in light of the jurisprudence, it was unlikely that in these circumstances a publication ban could be justified in the absence of evidence in either oral or affidavit form. The Complainant’s representative stated that he would likely not file affidavit evidence or call the Complainant as a witness since he did not wish to expose her to cross-examination.

46The Complainant filed a Notice of Motion requesting an order in the following terms:

a. that the real name of the said Complainant not be referred to, and the initials Dr. M. be used instead;

b. any mention of complainant’s place of residence or place of practice not to be referred [sic], and an appropriate word (like, a small city in Southwestern Ontario) be used instead.

[c.] that “…all documentation and verbal communications by the Tribunal, and anyone communicating with the Tribunal about this case be cautioned that there is a publication ban on the Complainant’s name, place of her residence and place of her medical practice …”;

[d.] that “…no identifying information be provided by the Tribunal about [this particular Complainant] to anyone other than the party participants, their counsel or members of the Tribunal and its staff, such information only to be provided as needed.”

47The Complainant submits that there will likely be significant media attention on this case. The essence of the reasons for the request are summarized in the following excerpts from the Notice of Motion:

…A full hearing on its merit [sic] would draw a [sic] significant attention from the media. There is a very high chance that complainant’s private, financial and personal information discussed will become public during the process. There is a real and substantial risk to the complainant’s dignity, privacy and personal interest if her real identity is disclosed.

(2) It would make her the object of scrutiny and judging by the media, public her patients and her colleagues. In addition identification of her as the complainant in this human rights complaint and release of her personal and privacy information will affect therapeutic or trust-like relationship [sic] with her patients and colleagues…

(8) Complainant believes that if the partial publication ban is not granted, there is real and substantial risk to her dignity and privacy rights. A full hearing on this complaint will bring a substantial amount of the complainant’s educational, family, social, financial and economical conditions, which constitute privacy and personal information of the complainant.

In support of the motion, the Complainant cited s. 9(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, Hogan v. Ontario (Ministry of Health and Long-Term Care), 2003 HRTO 6, and August v. Hetherington, 2003 HRTO 25.

48Under Rule 8 of the Tribunal’s Rules, oral hearings are fully open to the public unless the panel orders otherwise. The SPPA allows limitations on open hearings only where “…intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public”. Open hearings are also a matter of freedom of expression and freedom of the press, protected by s. 2(b) of the Charter, and strong reasons must exist to justify infringing these rights: see Dagenais, supra, Mentuck, supra, and August, supra.

49There is no justification for a publication ban in this case. First, the Complainant has presented no evidence in support of her request and has therefore not met the onus to justify the proposed ban with sufficient evidence, as required in Mentuck, supra at para. 38. The Tribunal is not formalistic about the nature of evidence accepted on motions: in August, supra, an unsworn and unchallenged affidavit was accepted and in Hogan, supra an interim ban was issued pending a formal affidavit because of urgency. In this case, however, the Complainant has decided not to testify or file an affidavit of any kind. With no evidentiary basis of any kind, it would be inappropriate for the Tribunal to order a publication ban.

50Moreover, the interests asserted by the Complainant are not of such a nature as to justify overriding the strong public interest in free expression and open Tribunal proceedings. Anyone who brings a claim and, indeed, any witness who testifies in a tribunal or court proceeding may be called upon to give evidence relevant to the issues in dispute that would in some other circumstances be considered personal. This includes matters such as income, family circumstances, and educational background. The desire to avoid publicity about the fact of having brought a complaint or the disclosure of this information to the public, media, colleagues or patients is not, in this case, of a compelling nature capable of overriding the public interest in open justice. The Complainant’s reliance on the jurisprudence referring to the therapeutic or trust-like relationship between a physician and patient is also misplaced. The cases refer to this factor in support of the importance of a patient’s privacy rights in his or her medical information, not to prevent disclosure of the details of a physician’s background.

CONCLUSION

51For these reasons, the Crown’s motion is dismissed and the Tribunal will hear the complaint on the merits. The Complainant’s motion for a partial publication ban is also dismissed.