Zvonimir Basic v. Royal Health Care Centre and Andy Gidwani, 2009 HRTO 2257

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zvonimir Basic Applicant

-and-

Royal Health Care Centre and Andy Gidwani Respondents

INTERIM DECISION

Adjudicator: Sherry Liang Date: December 24, 2009 Citation: 2009 HRTO 2257 Indexed as: Basic v. Royal Health Care Centre

1This is an Application filed on August 31, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The purpose of this Interim Decision is to deal with Requests for an Order During Proceedings filed by the applicant, and the failure of the organizational respondent to file a Response.

2In a previous Interim Decision in this matter, 2009 HRTO 1834, the Tribunal stated:

The organizational respondent has not responded to this Application or contacted the Tribunal. An application to the Tribunal starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a response or participate in a Tribunal proceeding may lead to orders against individual and corporate respondents without their participation. The organizational respondent’s attention is drawn to Rule 5.5 of the Tribunal’s Rules of Procedure which reads as follows:

5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

3The applicant has provided an address, phone number, and fax number for the individual respondent, who he identifies as the contact person for the corporate respondent. The Tribunal’s previous Interim Decision directed the individual respondent to advise the Tribunal of whether there is a more appropriate contact person for the organizational respondent, but he has not done so. The Tribunal shall send a copy of this Interim Decision to the organizational respondent by regular mail, courier and fax, care of the individual respondent.

4If the organizational respondent wishes to participate in this proceeding, it shall file a Response by January 8, 2010, together with an explanation of why the Response was not filed in accordance with the Notice of Application. If a Response is not received, the Tribunal may proceed without further notice to the organizational respondent and may take any or all of the steps set out in Rule 5.5.

REQUEST TO ADD RESPONDENTS

5The applicant filed a Request to add The College of Physicians and Surgeons of Ontario (the College) and Elaine Stone as respondents to the Application. The proposed respondents oppose the Request.

6The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

7The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, supra, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

8It is unnecessary to consider the second and third questions set out above. The applicant has failed to make any allegations that would support a finding that the proposed respondents have violated the Code. The Application alleges the respondent physician terminated the physician/patient relationship due to the applicant’s disability and sexual orientation contrary to the Code. The reasons given by the applicant in support of his Request to add the respondents do not address any matters arising under the Code in relation to these proposed respondents.

9The Request is accordingly denied.

10In the same Request, the applicant asks the Tribunal to order the individual respondent to “turn over” all his narcotic prescriptions to the Royal College of Physicians and Surgeons of Canada and the Ministry of Health and Long-Term Care, for review. Such an order is not in the Tribunal’s powers to make and it is denied.

REQUESTS TO INCREASE MONETARY REMEDY

11The applicant filed a Request to increase the monetary remedy sought in his Application from $1.5 million, to $2 million, and then a further Request to increase the remedy to $5 million.

12The Tribunal may allow an amendment to the remedy sought at this stage without engaging in an assessment as to the merits of the amendment. The Tribunal finds it appropriate to observe, however, that even the monetary remedy requested by the applicant in his Application as originally filed is highly extraordinary and well outside of the range of monetary compensation typically ordered by the Tribunal if a breach of the Code is established. In the circumstances, the requests to amend are denied.

REQUEST TO REMOVE COUNSEL FOR THE INDIVIDUAL RESPONDENT

13The applicant filed a Request seeking to have counsel for the individual respondent removed from the record. He states that he wishes to call her as his witness and it would thus be inappropriate for her to continue acting as counsel.

14Counsel for the individual respondent opposes the Request, stating that she has no material evidence or information to provide in respect of the issues in the Application, that her role is as legal counsel, and that any information provided by the individual respondent to her is protected by solicitor-client privilege.

15The Request is denied. There is nothing in the materials that suggests that the evidence of counsel for the individual respondent is required for the fair, just and expeditious resolution of this complaint. The Tribunal finds no basis for removal of counsel.

16The applicant will be sent the Response of the individual respondent. Both the applicant and individual respondent have indicated their consent to mediation. The Tribunal will therefore schedule a mediation, unless either of these parties indicates within a week of receiving this Interim Decision that he no longer wishes to participate in mediation. If no mediation is scheduled, this matter will be scheduled for a hearing.

17I am not seized of this matter.