Keith v. Ontario (Health and Long-Term Care), 2009 HRTO 436

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Arthur Keith

Applicant

-and-

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

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: April 14, 2009

Citation: 2009 HRTO 436

Indexed as: Keith v. Ontario (Health and Long-Term Care)

1The applicant is a physician whose place of origin is the United States, where he completed medical training in the specialty of psychiatry. He alleges in his Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) that he has been and continues to be discriminated against by the respondents based on place of origin as a result of differences between the treatment of his specialty training as compared with such training at a Canadian institution. The alleged discrimination stems from a regulation (O. Reg. 114/04), and policies and actions of the respondent College of Physicians and Surgeons of Ontario (the “CPSO”). The allegations date back to when Dr. Keith became a member of the CPSO in 1992, and refer to various events and policy changes that have occurred since that time, including the manner in which the applicant’s specialty has been identified on the CPSO’s website.

2This Interim Decision addresses various issues raised by the parties and determines the next steps in the litigation. The applicant asks in his Reply that the Responses be struck from the record on the basis that neither Respondent has signed an authorization for a lawyer to represent it and file the Response on its behalf. There is no merit to this request. The filing of a Response by counsel indicates that counsel has authorization to represent his or her client and there is no need for the client’s signature.

3Prior to the filing of the Application, the applicant, through his counsel, served a Notice on the CPSO and some of its officers under the Libel and Slander Act, R.S.O. 1990, c. L.12, as amended, alleging defamation. The applicant suggests that he intends to pursue a defamation action, although none has yet been filed. Following the delivery of the Notice there were negotiations between the parties. The CPSO argues that a settlement resulted from these discussions that bars the allegations in this Application (relying upon s. 34(11) of the Code). The applicant denies the existence of a settlement and states that any settlement does not affect his right to bring this Application. The CPSO suggests that it intends to bring a court application to enforce the settlement, although none has yet been filed. It asks that the Tribunal Application be dismissed as a result of the settlement or, in the alternative, deferred pending court proceedings.

4The CPSO also argues that the allegations against it have not been brought within the one-year time limit set out in s. 34(1) of the Code and that the Tribunal should not exercise its discretion under s. 34(2) to accept it. The applicant argues that the delay was incurred in good faith because he was “preoccupied with a contemplated lawsuit against the CPSO”.

5This is an appropriate case to determine the issues identified by the CPSO as preliminary matters. Accordingly, the Tribunal will schedule a one-day hearing, at which all three parties may participate, to address: (i) whether all or part of the Application should be dismissed as a result of the settlement or deferred pending court proceedings; (ii) whether all or part of the Application should be dismissed as untimely.

6The parties’ attention is drawn to Rules 16 and 17 governing disclosure of witnesses and documents. Document and witness lists filed 45 days prior to the hearing (see Rules 16.3, 16.4 and 17) should only relate to the preliminary issues identified in para. 5 above.

7I am not seized of this Application.