Hallett v. Grey Bruce Health Services, 2009 HRTO 403

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kristen Hallett

Applicant

-and-

Grey Bruce Health Services, Pat Campbell, Don Eby and Frank Greaves

Respondents

AND B E T W E E N:

Kristen Hallett

Applicant

-and-

Ontario Medical Association, Robert Lee, Michael Thorburn and Michael Kaufman

Respondents

AND B E T W E E N:

Kristen Hallett

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Health and Long Term Care, Karen Stanley, Derrick Legere and George Smitherman

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart

Date: April 6, 2009

Citation: 2009 HRTO 403

Indexed as: Hallett v. Grey Bruce Health Services

1This matter relates to three Applications that were filed with the Tribunal on August 28, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The underlying complaints were filed with the Ontario Human Rights Commission in October 2006.

2These Applications are briefly summarized as follows:

T-0167-08 (the “GBHS Application”): The respondents to this Application are Grey Bruce Health Services, Pat Campbell, Dr. Ron Eby and Dr. Frank Greaves (the “GBHS respondents”). The applicant alleges discrimination in employment on the basis of disability.

T-0168-08 (the “OMA Application”): The respondents to this Application are the Ontario Medical Association, Robert Lee, Dr. Michael Thorburn, and Dr. Michael Kaufman (the “OMA respondents”). The applicant alleges discrimination with respect to her membership in an occupational association based on disability.

T-0169-08 (the “MOH Application”): The respondents to this Application are the Ministry of Health and Long Term Care, Karen Stanley, Derrick Legere and George Smitherman (the “MOH respondents”). The applicant alleges discrimination on the basis of disability. Whether the Application is being pursued under the social area of employment or contract or both is a matter in dispute.

3A Case Resolution Conference was held on March 12, 2009 to hear oral submissions on various requests to dismiss the Applications and for other relief as raised by the respondents, as follows:

a. The GBHS respondents request that the GBHS Application be dismissed as barred pursuant to s. 34(11) of the Code or as an abuse of process, or in the alternative deferred, because of a civil action commenced by the applicant;

b. The GBHS respondents request that the GBHS Application be dismissed as against the personal respondents Campbell and Greaves as barred by s. 13 of the Public Hospitals Act, R.S.O. 1990 c. P.40;

c. The OMA respondents request that the OMA Application be dismissed for lack of jurisdiction;

d. The MOH respondents request that the applicant be disallowed from amending the MOH Application to allege discrimination in the social area of contracts; and

e. The MOH respondents request that the MOH Application be dismissed for lack of jurisdiction.

4All parties filed extensive written submissions on these preliminary issues in advance of the Case Resolution Conference.

The GBHS Application

a) Request to Dismiss because of Civil Action

5In October 2006, the applicant filed a complaint against the GBHS respondents alleging discrimination on the basis of disability relating to an alleged failure by the group of paediatric physicians to which the applicant belonged to accommodate her disability. While the issue of the applicant’s hospital privileges is raised on the face of the complaint, the applicant clarified at the hearing that no allegations of discrimination are being raised in relation to the privileges issue.

6In a letter to the Tribunal dated December 22, 2008, the applicant provided further clarification of the nature of her complaint against the GBHS respondents, which in essence is that once the GBHS respondents were made aware of the applicant’s allegations that her physicians group was failing to provide appropriate accommodation for her disability, the GBHS respondents had a positive duty to intervene to take steps to address this situation.

7No financial compensation is sought as a remedy in the Application, but the applicant seeks “public interest” remedies regarding the hospital’s future practices, apologies, the resignation of the personal respondents and other non-monetary relief.

8In April 2006, the applicant commenced a civil action against the three other physicians who were part of her paediatric physicians group expressly alleging a violation of the Code by these defendants as well as the breach of other common law duties and seeking damages in excess of $4 million. None of these defendants is a respondent to the GBHS Application.

9In June 2007, the applicant amended the Statement of Claim in the civil action to add Grey Bruce Health Services (“GBHS”) and Dr. Eby as additional defendants, and to seek damages against all defendants including GBHS and Dr. Eby in excess of $4 million and to seek further damages as against GBHS in additional amount of $2.5 million. The claim as against GBHS and Dr. Eby includes the same factual circumstances giving rise to the GBHS Application, including the express allegation that Dr. Eby and GBHS failed to take steps to address the applicant’s allegations that her disability-related needs were not being appropriately accommodated by her physicians group.

10I was advised at the hearing that the exchange of pleadings and documentary discovery in the civil action have been completed and that one final day of examination for discovery is being held later this month, such that the civil action should be in a position to be set down for trial in the next few months.

11The GBHS respondents take the position that the GBHS Application is barred as a result of s. 34(11) of the Code, which provides as follows:

(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

12The applicant takes the position that s. 34(11) does not apply to the GBHS Application because in the civil action, she is not “seeking an order under section 46.1 with respect to the alleged infringement”. The applicant argues that, while the Statement of Claim expressly alleges a violation of the Code in relation to the three defendants who were members of the applicant’s paediatric physicians group, she does not make any such express allegation as against either GBHS or Dr. Eby. Rather, the applicant states that the claim against Dr. Eby and GBHS relating to their failure to take action to address the alleged failure of the applicant’s physicians group to provide appropriate accommodation for her disability is premised upon Dr. Eby’s duties arising out of his position as Chief of Medical Staff at GBHS and not as a result of his duties under the Code.

13In my view, this is a distinction without a difference. The amended Statement of Claim expressly alleges that Dr. Eby “was required in law to at all times act fairly and reasonably in the best interests of GBHS, its physicians and the public interest” as a result of his various positions and roles at the hospital. This statement is sufficiently broad to encompass any obligations toward the applicant that Dr. Eby may have had under the Code. The amended Statement of Claim then goes on to expressly allege that Dr. Eby breached his duties by failing to take “affirmative action” to address and attempt to resolve the dispute between the applicant and the other members of her paediatric physicians group regarding the accommodation of her disability. This is precisely the same allegation as is raised in the GBHS Application.

14The applicant further argues that the GBHS Application is not barred because she is seeking only public interest and other non-monetary remedies which are not available to her in the civil action. The applicant argues that s. 46.1(1) of the Code only empowers a court to award compensation and restitution as a result of the infringement of Code rights, whereas the Tribunal has additional powers under s. 45.2(1) also to make “an order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act”, which includes the power to “direct a person to do anything with respect to future practices”.

15These are early days since the effective date of the amendments to the Code, and the courts have yet to rule on the precise scope of their remedial jurisdiction under s. 46.1. However, with respect, that is not the issue under s. 34(11). The issue under s. 34(11) is whether an order under s. 46.1 is claimed in the civil action as a result of the alleged Code infringement, not whether additional or different remedies might be capable of being claimed in an application before this Tribunal. In the instant case, there is no question that a significant amount of financial compensation is being sought in the civil action from Dr. Eby and GBHS as a result of the alleged breach of their duties to take affirmative action to intervene and address the dispute over the accommodation of the applicant’s disability within her physicians group, which I have found encompasses any duties they may have had under the Code. As a result, in my view, a remedy under s. 46.1 is being sought as a result of the alleged infringement of the applicant’s rights under the Code. In this regard, I note that it is not necessary for s. 46.1 to be expressly identified in the Statement of Claim, as long as a remedy is being sought that arises out of the infringement of a Code right: Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 11.

16Having found that the provisions of s. 34(11) apply in these circumstances, the question arises whether it makes any difference that there are two personal respondents to the GBHS Application, Campbell and Greaves, who are not named as defendants in the civil action. In my view, this does not make a difference. Section 34(11) states that a person may not file an application with respect to a right that she believes has been infringed if the person is seeking an order in a civil action “with respect to the alleged infringement”. I have found that that the GBHS Application alleges an infringement of the applicant’s rights under the Code on essentially the same basis on which she is seeking a remedy in the civil action. As a result, any application that the applicant attempted to file against any respondents in respect of the alleged violation of this same right would be barred, whether or not the respondents were also named as defendants in the civil action.

17As a result, I find that the GBHS Application is barred by s. 34(11) of the Code, and is thereby dismissed in its entirety.

b) Section 13(1) of the Public Hospitals Act

18Having come to the foregoing conclusion, it is not necessary to address the GBHS respondents’ argument under s. 13(1) of the Public Hospitals Act.

The OMA Application

19The OMA respondents request that the OMA Application be dismissed for lack of jurisdiction. It does not appear that this request is properly framed as a matter of the Tribunal’s “jurisdiction”. Rather, as I see it, the OMA respondents in reality argue that the applicant has failed to set out a prima facie case that would support a finding of any violation of the Code by the OMA respondents.

20The bases upon which the applicant alleges that the OMA respondents violated her rights under the Code as set out in counsel’s December 22, 2008 letter is essentially twofold. First, the OMA is one of the parties to the Alternate Funding Agreement (the “AFA”) between the MOH and the paediatric physicians group to which the applicant belonged and also assisted in drafting the governance agreement between the individual members of the group (the “Governance Agreement”). It is alleged that the OMA respondents had a positive obligation to ensure that those agreements complied with the Code and contained mechanisms that would provide for accommodation of medical leave.

21No indication is given as to how it is alleged that either of those two agreements failed to comply with the Code in any way that is relevant or material to the OMA Application, nor is any non-compliance apparent from a review of these documents. With regard to the issue of the accommodation of medical leave, the issue of extended sick leave is addressed at Article 3.06(e) of the Governance Agreement as being a matter requiring an authorizing written declaration by all of the physicians in the group and a provision for dispute resolution through arbitration is provided by Article 5.04. I fail to see how this allegation provides any basis upon which a finding of a Code violation against the OMA respondents could be sustained.

22The second basis upon which liability is alleged against the OMA respondents is that they had a positive duty to intervene and assist the applicant when she notified them of her dispute with the other physicians in her group regarding her need for accommodation. The OMA states that it represents all physicians and so could not intervene to advocate on behalf of the applicant against the other physicians in her group. This was accepted by the applicant, and she clarified that she was not looking for advocacy. Rather, her allegation is that the OMA respondents had a positive duty to attempt to remedy the situation. When pressed in argument as to what it is being alleged that the OMA respondents ought to have done, counsel for the applicant stated that they ought to have referred the applicant to the dispute resolution provision in her own Governance Agreement or provided mediation services. The applicant also alleges that the personal respondent Dr. Kaufman ought to have provided assistance to her through the Physician Health Program (“PHP”). The applicant acknowledged that there was no basis for alleging a Code violation as against the personal respondent Dr. Thorburn, and agreed to withdraw the Application as against him.

23There are two problems with these arguments, one factual and the other legal. First, from a factual standpoint, the applicant’s own material indicates that the personal respondent Mr. Lee did discuss the possibility of arbitration with the applicant and that he did offer to provide mediation services. The applicant’s own Statement of Claim alleges that Mr. Lee also offered mediation to the other members of her physicians group. There is no indication in the material as to why mediation ultimately was not pursued at that time, although it appears that these discussions were occurring shortly before the applicant retained her own legal counsel and the offer of mediation may simply have been overtaken by the unfolding of events. But there does not appear to be any factual basis to fault the OMA in any of this.

24With regard to the Physician Health Program, the services provided under this program are limited to addiction-related issues and mental health issues and the purpose of the program is to help physicians with those issues re-integrate into medical practice. The scope of the program simply does not extend to deal with physicians with physical disabilities where there is a dispute with the physician’s practice group.

25From a legal standpoint, the principal authority upon which the applicant relies in asserting that the OMA respondents had a positive duty to intervene is this Tribunal’s decision in Payne v. Otsuka Pharmaceutical Company Limited 2002 CanLII 46516, where it is stated at 22-23:

The Board finds there is a human rights duty not to condone or further a discriminatory act that has already occurred. To condone or further a discriminatory act would extend or continue the life of the initial discriminatory act. Indeed, it is conceivable that the subsequent discriminatory act or tail-end could be worse in impact than the beginning of the chain of discrimination. The legal duty owed is not just as between employer-employee, service provider-client, landlord-tenant, etc. The obligation extends to those who become involved in a situation that involves a discriminatory act, who, while not the main actors, are drawn into the matter nevertheless, through contractual relations (i.e., the Ontario Respondents) or otherwise.

The nature of when a third party or collateral person would be drawn into the chain of discrimination is fact specific. However, general principles can be determined. The key is the control or power that the collateral or indirect respondent had over the complainant and the principal respondent. The greater the control or power over the situation and the parties, the greater the legal obligation not to condone or further the discriminatory action. The power or control is important because it implies an ability to correct the situation or do something to ameliorate the conditions. Accordingly, on one end of the spectrum of responsibility, an employer has a legal duty to its employees, agents and even to its customers and clients. On the other end of the spectrum, a mere bystander would have no duty to another stranger. A customer generally would have no duty to another customer of its supplier.

26I fully accept and endorse these principles as an accurate statement of the law. However, as stated in the Payne decision, whether or not a specific respondent is subject to a positive obligation not to condone or further a discriminatory act is fact specific and depends upon “the control or power that the collateral or indirect respondent had over the complainant and the principal respondent”. While the Tribunal refers to a “mere bystander”, a “stranger” or a “customer” as being at the end of the spectrum where such an obligation would not be imposed, I do not take this as being a statement that these are the only categories where there is no duty. Rather, these are just examples at one extreme which illustrate that the duty will not be imposed in all circumstances.

27In the specific factual circumstances of the OMA application, I fail to see how the OMA respondents had the kind of “control or power” over the applicant and the other physicians in her group required for the imposition of this positive duty to intervene. The OMA is a professional organization which represents and serves physicians in Ontario. It may have had some ability to seek to influence or persuade the applicant or the other physicians in her group, but it does not appear to me to have any real control or power over them to the extent required to impose a legal obligation to intervene in a manner that could result in a finding of a Code violation.

28Accordingly, I find that there is both no proper legal foundation to support the existence of a positive duty on the part of the OMA respondents and no proper factual basis to support the allegation that they failed to take reasonable and appropriate steps in furtherance of any such duty. As a result, the OMA Application is dismissed.

The MOH Application

a) Amendment of the complaint

29The MOH respondents take issue with the “re-casting” of the applicant’s complaint as a result of the December 22, 2008 letter from applicant’s counsel. In particular, the MOH respondents allege that the applicant is now improperly attempting to amend the complaint to allege a violation of s. 3 of the Code in the social area of contracts, whereas the original complaint as filed by the applicant alleged a violation of s. 5 of the Code in the social area of employment. It is stated that this is an attempt to amend the complaint in contravention of Rule 6.3 (set out above).

30There are two problems with the MOH respondents’ position. First, as a factual matter, the complaint as filed with the Commission does appear to have alleged a violation in both the social areas of contract and employment. The complaint as originally drafted by the applicant cites only “employment” and not “contract” in response to the question “in what area did the discrimination happen?”. However, when this self-drafted complaint was filed with the Commission, the Commission attached a cover page to the complaint which indicated the “social area” in which the discrimination was alleged to have occurred as being in “contract” rather than “employment”. Confusingly, however, the Commission continued to cite s. 5 of the Code, which applies only to discrimination in employment, as the section alleged to have been infringed.

31Second, the MOH respondents misconstrue that, in order to support a violation of s. 5 of the Code, the applicant would need to establish that she was an “employee” of MOH. That clearly is not the case, and was never the allegation made by the applicant. As demonstrated by the Payne decision, supra, the right protected under s. 5 of the Code applies to discrimination “with respect to employment” and extends beyond the employer-employee relationship.

32The applicant’s allegations against the MOH respondents have been fairly clear and consistent from the start. On the face of her original complaint, the applicant alleges that she made the MOH respondents aware of her circumstances in terms of her need for accommodation and the difficulties she was experiencing with her physicians group in obtaining the required accommodation, and that she requested the assistance of the MOH respondents in addressing or resolving her situation. The applicant alleges that no assistance was provided.

33In her counsel’s December 22, 2008 letter, the nub of the applicant’s allegations against the MOH respondents is expressed in the following manner: “Where the Ministry becomes aware that the physicians are carrying out the services in violation of the Code, the Ministry has a positive duty to act which duty includes, but is not limited to, investigation, mediation and corrective measures”.

34In my view, this statement is entirely consistent with the nature of the allegation raised by the applicant against the MOH respondents from the outset. Whether this allegation is properly characterized as being in the area of employment within the meaning of s. 5 of the Code or in the area of contract within the meaning of s. 3 of the Code does not change the essential nature of the applicant’s allegations and would best be determined after a hearing on the merits. But I do not see any basis to support the MOH respondents’ argument that the applicant is seeking to expand the subject-matter of her complaint in violation of Rule 6.3.

35As a result, this aspect of the MOH respondents’ Request is denied.

b) Request to dismiss for lack of jurisdiction

36As with the Request made by the OMA respondents, I again do not see the MOH Respondents’ Request as a true matter going to this Tribunal’s jurisdiction. Rather, once again I see this request as being whether the applicant has established a prima facie case that would support a finding of a violation of the Code by the MOH respondents.

37As with the OMA respondents, the applicant relies upon the Payne decision to support the imposition of a positive duty on the MOH respondents in these circumstances. The applicant also relies upon the provisions of the AFA, to which the MOH is not only a signatory but the source of funding for the physicians group to which the applicant belonged.

38The AFA includes provisions requiring the group physicians to comply with all applicable laws (Articles 15.1 and 15.3). The specific language of these provisions states that the group and its physicians “shall comply with all applicable laws . . . relating to or affecting the performance of [their] obligations under this Agreement . . .” MOH counsel took the position before me that these provisions were restricted in their application only to medical or health-related laws, and do not extend to laws of general application such as the Code. This position is not supportable. The language of these provisions is quite broad and unrestricted. Clearly, the Code is a law that relates to the performance of obligations under the Agreement. For example, if a physicians group failed to accommodate the needs of one of its member physicians in violation of the Code, then this certainly would affect the performance of obligations under the Agreement, particularly if the physician requiring accommodation was unable to continue practice without the required accommodation.

39The Agreement also gives the MOH broad authority to terminate the agreement (Article 13.1). In particular, the MOH has the power to terminate the Agreement “at any time and for any reason” by providing three months notice. In addition, the MOH has the power to terminate where the group or a group physician has breached a material provision of the Agreement, providing that the MOH gives the group the opportunity to remedy the breach within 30 days.

40In my view, these provisions of the Agreement provide the MOH with the kind of “control or power” over the applicant and the other physicians in her group that may trigger the obligation expressed in Payne to take steps to address the situation. For example, upon becoming aware of the applicant’s allegations, the MOH may have been under a duty to conduct some form of inquiry or investigation to assess whether the other group physicians were denying accommodation in violation of the Code, in order to determine whether these physicians were in material breach of the Agreement. If so, Article 13.1 of the Agreement may have given the MOH the power to ensure that this situation was remedied. On a more informal level, the entire structure of the AFA and the relationship between the MOH and the group physicians may have invested the MOH with sufficient control and power to intervene to at least attempt to resolve the matter whether through mediation or other means.

41In addition, the MOH respondents took the position before me that the MOH does not get involved in what it regards as the internal affairs among group physicians under the group’s Governance Agreement. And yet on the face of the applicant’s complaint, she alleges that an MOH representative (the personal respondent Legere) had engaged in discussions with the other members of her group regarding her work reduction. In other material before me, the applicant alleges that not only did the MOH meet with other members of her group about her medical issues in her absence, but that the group also sent to the MOH for review a draft of their proposal for accommodation of the applicant’s medical restrictions. Counsel for the MOH respondents were afforded an opportunity to respond to these allegations, including an offer to allow them to make written submissions following the oral hearing, and declined to do so on the basis that these allegations were not relevant to the issue of the Tribunal’s jurisdiction. To the contrary, these allegations support the applicant’s position that not only did the MOH exercise sufficient control and power to trigger a positive duty to intervene, but they did in fact get involved in the accommodation issue, although not to the applicant’s satisfaction.

42The specific extent of the duty the MOH was under in these circumstances and what specifically this duty required the MOH to do are matters best left to be determined following a hearing on the merits. At this stage, however, it is my view that the applicant’s allegations are sufficient to support that the MOH was under a duty at least to take some steps such that the MOH Application should proceed. Accordingly, the MOH respondents’ Request to dismiss the MOH Application is denied.

43I do, however, wish to address the matter of the personal respondents to the MOH Application. While the MOH may have been under a duty to take steps, this may not be a case where it would be appropriate to make findings of liability personally against the individuals named. Further, I note that no specific remedy is sought in this Application as against any of the personal respondents. Accordingly, there may not be an appropriate or sufficient basis upon which the MOH Application should proceed as against the personal respondents. The applicant is directed to advise the Tribunal and the MOH respondents within 10 days of the date of this Case Resolution Conference Decision as to whether she intends to continue to proceed as against the personal respondents to the MOH Application, or whether she is prepared to withdraw the Application as against these specific respondents. If she advises the Tribunal that she does intend to continue to proceed as against the personal respondents, the Tribunal will set a schedule to receive written submissions from the parties as to whether it is appropriate for her to do so in the circumstances of this case. The parties are referred to the Tribunal’s Interim Decision in Persaud v. Toronto District School Board, 2008 HRTO 31.

44Finally, I note that the applicant is not seeking financial compensation as a remedy and is largely seeking what would be regarded as public interest remedies, which may be amenable to resolution through mediation. Mediation in this matter has not yet been attempted, pending determination of the preliminary issues raised by the parties. The applicant and the MOH are directed to advise the Tribunal within 10 days of the date of this Case Resolution Conference Decision as to whether they are interested in pursuing mediation, and if so, to provide their availability for mediation within the next two months. If either of the parties is not interested in mediation, then dates will be set for disclosure and the filing of materials in preparation for the Case Resolution Conference on the merits in this matter.

Order

45For these reasons, the Tribunal makes the following order:

a. The GBHS Application is dismissed as barred by s. 34(11) of the Code;

b. The OMA Application is dismissed as failing to establish a prima facie case;

c. The Requests by the MOH respondents are denied;

d. The applicant is directed to advise the Tribunal and the MOH respondents within 10 days of the date of this Case Resolution Conference Decision as to whether she intends to continue to proceed as against the personal respondents to the MOH Application, or whether she is prepared to withdraw the application as against these specific respondents; and

e. The applicant and the MOH are directed to advise the Tribunal within 10 days of the date of this Case Resolution Conference Decision as to whether they are interested in pursuing mediation, and if so, to provide their availability for mediation within the next two months.