Christianson v. College of Physicians and Surgeons of Ontario, 2009 HRTO 438

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Christianson Applicant

-and-

The College of Physicians and Surgeons of Ontario and Carol Leet Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: April 15, 2009 Citation: 2009 HRTO 438 Indexed as: Christianson v. College of Physicians and Surgeons of Ontario

INTRODUCTION

1This is an Application filed August 27, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), alleging discrimination in the area of goods, services and facilities on the basis of disability. The applicant also filed a Request to Expedite proceedings, which was denied: 2008 HRTO 91.

2The respondents filed a full Response on January 5, 2009, in which they make a Request to defer the Application pursuant to s. 45 of the Code. The applicant filed a Reply on February 18, 2009 in which he opposes the respondents' deferral request.

3The purpose of this Interim Decision is to decide whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of other related proceedings.

FACTS AND SUBMISSIONS

4The Application stems from complaints the applicant lodged with the respondent (the "College") regarding two Ontario physicians. The complaints were filed in November 2005 and November 2007, with decisions being rendered in March 2007 and May 2008, respectively. The applicant alleges a number of flaws in the College's handling of his complaints, including:

I. Discriminating against him on the basis of mental disability; II. Breaching his privacy and other interests by disclosing information about the investigation to the doctors in question; and III. Failing to appreciate or deal with the seriousness of the alleged "criminal" acts of the doctors in question.

5Citing these and other failings, the applicant alleges a breach of the Code, of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (the "Charter") and of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended. Much of the rest of the Application recounts the incidents and alleged breaches that formed the basis of the complaints against the doctors that the applicant lodged with the College in the first place.

6The College is the regulatory agency for physicians in Ontario. Its Complaints Committee (the "Committee"), of which the individual respondent was Co-Chair, is tasked with receiving and investigating complaints brought by the public against the College's members. The Health Professions Procedural Code outlines the role and responsibilities of the College and of the Committee in handling complaints from the public, which the respondents claim they followed at all material times.

7The respondents allege that the Application amounts to a challenge to the decisions taken by the Committee with respect to the applicant's complaints and that the appropriate avenue for challenging those decisions is by way of appeal to the Health Professions Appeal and Review Board (the "HPARB"). In fact, they note, the applicant has already availed himself of his appeal rights, pointing to two appeals currently under way before the HPARB arising from the two contested decisions of the Committee. The HPARB has not yet reached a decision in either of those cases.

8The respondents argue that the HPARB appeals address the issues raised in this Application and therefore ask the Tribunal to defer these proceedings until the HPARB renders decisions in those appeals. The applicant asserts that, while the HPARB may address the concerns about the College's complaints process, it will not consider his discrimination claims. For this reason, he asks the Tribunal not to defer these proceedings.

DECISION

9The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an application where there is ongoing litigation based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

10Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

11In this case, it seems the content of the Application is substantially the same as the applicant's appeals to the HPARB. In those proceedings the applicant served a notice of constitutional question and is making arguments about discrimination and denial of service, in addition to allegations of other Charter breaches. The applicant has relied on the Charter to make substantially the same arguments regarding the alleged discrimination by the College. There is a public interest in avoiding the duplication of administrative proceedings hearing the same evidence and deciding the same issues. I therefore find that deferral is appropriate, pending the outcome of the HPARB hearings.

12The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the other proceeding has been concluded.

13I am not seized of this matter.