Diler v. Cambridge Memorial Hospital, 2009 HRTO 1620

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuray Diler

Applicant

-and-

Cambridge Memorial Hospital and Edward Matti

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: October 7, 2009

Citation: 2009 HRTO 1620

Indexed as: Diler v. Cambridge Memorial Hospital

1The applicant filed her Application on March 9, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of services by the respondent Cambridge Memorial Hospital. Dr. Matti was added as a party respondent at the request of Cambridge Memorial Hospital (the “Hospital”).

2This Interim Decision deals with the requests to dismiss found in the respective Responses of the respondents. Both respondents ask the Tribunal to dismiss on the following grounds: (1) that another proceeding has appropriately dealt with the substance of the Application; and (2) that the applicant filed her Application more than one year after the last alleged discriminatory incident.

Section 45.1

3Dr. Matti and the Hospital both advise that the applicant filed a complaint with the College of Physicians and Surgeons of Ontario (“CPSO”) in September 2007, which was addressed by the Complaints Committee. When the Complaints Committee elected not to proceed any further with that complaint, the applicant filed a request for review with the Health Professions Appeal and Review Board (“HPARB”). That request appears to have been filed in May 2008 and is ongoing.

4The applicant does not deny the details of these proceedings in her Reply, but states that the initial complaint to the CPSO and subsequent request for review to the HPARB deal with an allegation that is not the subject matter of her Application, namely that Dr. Matti prescribed excessive dosages of medication.

5Section 45.1 states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

6I am in agreement with the applicant that the proceeding before the Complaints Committee of the CPSO, which is now being reviewed by the HPARB, does not deal with the substance of this Application. While the Application does allude to the medication issue, it is primarily focused on comments and questions which the applicant alleges Dr. Matti made to her concerning her disability, her ethnicity/place of origin and her creed. These alleged comments/questions are not dealt with in the applicant’s letters to the CPSO and HPARB, nor are they addressed in the decision of the Complaints Committee.

7Accordingly, I am not prepared to dismiss the Application on this basis.

Delay

8In their Responses the respondents state that the applicant was last seen by Dr. Matti on October 16, 2006, and that the filing of the Application nearly two and a half years later is clearly outside the one-year time limit in s. 34. Section 34 states, in part:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

9The applicant failed to address the issue of delay in her Reply to the Tribunal. She neither confirmed nor denied that her last visit to Dr. Matti’s office took place on October 16, 2006. Her Application states that the last incident of discrimination took place in May 2008, when she received a letter from Dr. Matti that he was closing her file, thus ending their formal patient/doctor relationship. However, there is no alleged link between that act and any prohibited ground of discrimination under the Code.

10Accordingly, I require submissions from the applicant by October 19, 2009, on the following issues:

1. When was the last appointment with Dr. Matti she attended?
2. Is she alleging that the closing of her file was a violation of the Code and, if so, on what basis?
3. If her last appointment with Dr. Matti took place on October 16, 2006, why is the formal termination of services 19 months later part of a “series of incidents” as that term is used in s. 34(1)(b)?
4. Assuming that there was a delay in the filing of the Application, was it incurred in good faith?

11The respondents may file supplementary submissions on the issue of delay by October 26, 2009.

12I am not seized of this matter.