Farlow v. Hospital for Sick Children, 2009 HRTO 739

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Farlow

Applicant

-and-

Hospital for Sick Children, Dr. Michael Weinstein and Dr. Christopher Parshuram

Respondents

case Resolution Conference DECISION

Adjudicator: Mark Hart

Date: June 3, 2009

Citation: 2009 HRTO 739

Indexed As: Farlow v. Hospital for Sick Children

APPEARANCES AND wRITTEN SUBMISSIONS BY

Barbara Farlow, Applicant ) Shereese Qually, Counsel

Hospital for Sick Children, ) Melanie Warner, Counsel

Respondent )

Dr. Michael Weinstein ) Sarah Corman and

and Dr. Christopher Parshuram, ) Kasia Czajkowski, Counsel

Respondents ) )

1This is an Application dated August 6, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment and contract on the basis of disability. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on September 10, 2007.

2The purpose of this Case Resolution Conference Decision is to address the respondents’ requests that the Application be dismissed. While the respondents advanced a variety of bases upon which they assert that the Application should be dismissed, it is only necessary in my view to address the argument relating to s. 34(11) of the Code. As a result, I express no view on the remaining arguments made by the parties.

3The complaint filed by the applicant alleges discrimination in the provision of services because of family status arising out of the events leading to the tragic death of the applicant’s infant daughter on August 12, 2005. Upon filing with the Commission, the Commission extended the complaint to include the ground of disability and added “The Estate of Annie Farlow by her litigation guardian Barbara Farlow” as an additional complainant.

4The applicant’s daughter, Annie Farlow, was born on May 25, 2005 with a genetic condition known as Trisomy 13. Trisomy 13 is a condition that commonly presents with the existence of multiple structural anomalies that often lead to early death, although like most genetic conditions, the presentation in each child is unique and there is a range of afflictions and abilities. Some children do survive full Trisomy 13, albeit with physical and cognitive disabilities ranging from severe to profound.

5In the complaint, the applicant alleges that the respondent Hospital practised a policy not to provide life-saving treatment to infants with genetic disorders such as Trisomy 13 and that as a result, treatment information and options were withheld from her as a parent. This allegation has now been extended to an allegation that, as a consequence of the Hospital’s alleged policy, the respondents caused Annie Farlow’s death.

6On August 10, 2007, one month prior to filing her complaint with the Commission, the applicant and her husband commenced a civil claim in the Superior Court of Justice (Small Claims Court) against the respondents framed as a claim in negligence and professional malpractice (the “Civil Action”). The Civil Action is based on the same factual allegations giving rise to the human rights complaint and claims that the respondents “were negligent and in breach of their professional obligations in that they: failed and/or refused to provide appropriate testing and diagnostic information about Annie which would have permitted the Farlows to make informed consent to treatment decisions; . . . disregarded the Farlow’s right to decide to pursue medical treatment for Annie; . . . [and] practiced a policy of non-treatment for infants with serious genetic disorders”. It is apparent that these are the same allegations as are raised in the human rights complaint. In addition, the Civil Action expressly claims that the respondents “provided medications to Annie which hastened her death”, which is an allegation now also being raised in this human rights proceeding.

7The respondents take the position that the 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.

8The applicant submits that the Civil Action is framed in negligence and professional malpractice and no allegation is being raised in the Civil Action regarding any potential violation of the Code. The applicant relies upon this Tribunal’s decisions in Baghdasserians v. 674469 Ontario Ltd., 2009 HRTO 404 and Smith v. Menzies Chrysler, 2008 HRTO 37 for the proposition that an application is not barred by s. 34(11) of the Code where a civil action raises a distinct claim based on common law or other rights and does not claim either an infringement of the applicant’s rights or any remedial relief under the Code.

9As stated in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 10:

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.

10In the Beaver decision, this Tribunal held that where a violation of the Code is alleged in a civil action, it is not necessary to expressly plead entitlement to a remedy under s. 46.1 of the Code for the application of s. 34(11) to be triggered.

11This finding was extended in Hallett v. Grey Bruce Health Services, 2009 HRTO 403. In Hallett, the applicant had commenced a civil action with respect to two of the respondents to her human rights application and three other individuals. The civil claim arose out of the same factual circumstances that gave rise to the human rights application, and raised the same allegations as were raised in the civil action. While the civil action included express claims of a violation of the Code as against the three individuals who were not respondents to the human rights application, no express claim of a Code violation was made as against the two respondents to the human rights application. Nonetheless, it was held that the allegation in the civil action that the respondents were “required in law to at all times act fairly and reasonably in the best interests of [the respondent hospital], its physicians and the public interest” was sufficiently broad to encompass any obligations toward the applicant that the respondents may have had under the Code.

12Similarly, in the instant case, the Civil Action arises out of the very same factual circumstances and raises the very same allegations as the Application. In my view, while the claims in the Civil Action are framed in negligence and professional malpractice, the claim that the respondents were “in breach of their professional obligations” is sufficiently broad to encompass a claim of a violation under the Code. Not only is this not disputed by the respondents, but they have expressly submitted that the claims in the Civil Action are sufficiently broad to capture the allegations of an infringement of the Code that are raised in the Application.

13The applicant seeks to distinguish the Hallett decision on the basis that the Civil Action has been brought only by the applicant and her husband, whereas the Application is brought by the applicant both in her personal capacity and on behalf of the Estate of Annie Farlow. As a result, the applicant submits that, even if the Civil Action can address the alleged infringement of the applicant’s rights in her personal capacity, it cannot address the alleged infringement of Annie Farlow’s rights as her estate is not a party to that proceeding.

14The problem with this argument is that the Estate of Annie Farlow in fact is not a party to this proceeding and never has been. As noted above, the original complaint was filed with the Commission solely by the applicant. Upon filing with the Commission, the Commission purported to add “The Estate of Annie Farlow by her litigation guardian Barbara Farlow” as an additional complainant. However, at that time and indeed until the present day, the applicant had no legal status to commence any proceeding on behalf of the estate of Annie Farlow. All parties are in agreement that, in order to have status to initiate any legal proceeding on behalf of a deceased infant, the applicant needs to make an application to the Ontario Superior Court to obtain a Certificate of Appointment of Estate Trustee without a will. No such certificate had been obtained at the time the complaint was filed with the Commission, with the result that the Commission’s purported action to add the Estate of Annie Farlow as an additional complainant was a nullity.

15I appreciate that, when the applicant chose to transfer her human rights complaint to the Tribunal, she erroneously only identified herself as the applicant and did not expressly make reference to the estate of Annie Farlow. Nonetheless, the Estate of Annie Farlow was not a proper party to the original human rights complaint and thus could not be a party to this Application. Further, at the time of transfer and even to this day, the applicant still did not have the legal authority to commence or continue any legal proceeding on behalf of Annie Farlow’s estate in any event.

16The applicant submits that obtaining the required certificate is a simple process which she will undertake and provide confirmation of to the Tribunal. If the applicant does so, obtaining this certificate would at that time give her authority to commence or perhaps join a legal proceeding on behalf of the estate. This, however, is an application under s. 53(3) of the Code to which Part II of the Tribunal’s Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code (the “Transitional Rules”) applies. Rule 6.3 of the Transitional Rules states that “Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to add grounds, expand the subject matter of the complaint or add parties to the Application.” As a result, even if the applicant now obtained legal authority on behalf of her daughter’s estate, she would not be permitted under Rule 6.3 to add the estate as an additional party to the Application.

17In making the foregoing statements as to the authority to commence a legal proceeding on behalf of an estate, I am mindful of the respondents’ submissions that under s. 38(1) of the Trustee Act, an executor or administrator of a deceased person only has the right to maintain an “action” for torts or injuries to the person or property of the deceased and that the term “action” does not extend to an application under the Code. I do not find it necessary for me to decide this issue for the purpose of disposing of the Application, and none of the statements I have made in this decision are intended to express any view one way or another on this issue.

18In the result, I find that the Application is barred by s. 34(11) of the Code. The Application is therefore dismissed.

19I do wish to make one final comment. The respondents have taken the position that the Application is frivolous and vexatious. While I appreciate that the respondents dispute the allegations raised by the applicant, it is hard for me to imagine a more serious allegation than the allegation that the respondent Hospital practises a policy of denying treatment to infants with certain classes of disabilities and that it caused Annie Farlow’s death. Whether or not the applicant’s allegations have any merit and can be proven is a matter for adjudication in the appropriate forum. This decision stands only for the proposition that, having raised the same allegations in the Civil Action, the court and not this Tribunal is the appropriate forum for the determination of these allegations.