Dorosz v. Kingston General Hospital, 2010 HRTO 1523

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lidia Dorosz on behalf of the Estate of Jaroslawa Dorosz

Applicant

-and-

Kingston General Hospital

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 13, 2010

Citation: 2010 HRTO 1523

Indexed as: Dorosz v. Kingston General Hospital

1This is an Application filed on September 2, 2009 under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The applicant filed this Application on behalf of the estate of her deceased mother, as estate executrix. The Application alleges discrimination on the basis of age in the area of goods, services and facilities. Specifically, it is alleged that the applicant's deceased mother was subjected to discrimination because of age in the provision of health services by the respondent hospital.

2On January 11, 2010, the respondent filed a Request for an Order during Proceedings ("Request"). In the Request, the respondent asked the Tribunal to dismiss the Application asserting that (1) the deceased's daughter did not have standing to bring the Application and (2) the hospital is not responsible in law (vicarious or otherwise) for actions of individual medical practitioners. The applicant filed various submissions in response to the issues raised.

3On May 31, 2010, following the release of the Tribunal's decision in Morrison v. Ontario Speed Skating Association, 2010 HRTO 1058, the respondent withdrew its first ground for seeking dismissal, namely the question of standing. The respondent reserved its right to renew its request for dismissal on the basis of standing should there be any developments with respect to the caselaw in this regard. The respondent, nevertheless, maintained its second ground for seeking dismissal, namely the question of liability. The respondent asked the Tribunal to immediately proceed to issue a decision with respect to its Request and the remaining liability issue.

4The question of whether the Application raises allegations upon which the respondent hospital may be responsible for Code liability cannot be determined at this preliminary stage. The parties contest the nature of the respondent's legal relationship with various doctors and residents identified in the Application narrative and the Application contains allegations with respect to the provision of services by the respondent hospital's nurses and volunteer chaplaincy. This matter will likely require an assessment of the facts and evidence, along with an interpretation of the law in the area and, as such, it is appropriate to receive a full Response (Form 2) from the respondent. As stated in Grant v. Bombardier, 2009 HRTO 267, at para. 7, "[t]he filing of a complete response is an integral part of the Tribunal's process." This allows for a better understanding of the nature of the issues and assists the Tribunal in determining how best to proceed with the Application with a view to facilitating its fair, just and expeditious resolution, including making preliminary determinations.

5Further, as a number of Tribunal decisions have stressed, the Tribunal generally requires that respondents file full responses and the Tribunal only considers requests for early dismissal without full responses in limited circumstances. See, for example, Wood v. Sears Canada, 2009 HRTO 2126 and Ugolini v. Salvation Army Barrie, 2009 HRTO 1801. As explained in Masood v. Bruce Power, 2008 HRTO 381, respondents must file a full response, even where a preliminary or jurisdictional issue is being raised, except in four situations: (i) where the respondent alleges that a claim for relief based upon the same facts was filed in civil court; (ii) where a complaint was filed with the Ontario Human Rights Commission based upon the same, or substantially the same facts; (iii) where a full and final release was signed; and (iv) if the matter falls under federal jurisdiction. The preliminary issue raised in the current Request does not fall into any of the four categories identified in Masood.

6The respondent is directed to file a complete Response within 21 days of this Interim Decision. I am not seized of this matter.