Human Rights Tribunal of Ontario
B E T W E E N:
Christina Jahn
Applicant
-and-
James Casserly
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Date: July 27, 2010
Citation: 2010 HRTO 1603
Indexed as: Jahn v. Casserly
1The 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 a proceeding before the College of Physicians and Surgeons of Ontario (the "College").
2The applicant was a patient of James Casserly, a physician who practiced in Smith Falls, Ontario. She filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on February 5, 2010, which alleges that the respondent discriminated against her on the basis of disability, sex, marital status, receipt of public assistance and record of offences.
3Specifically, the applicant alleges that she received substandard care from Dr. Casserly, and that he made "demoralizing comments" towards her, which she infers were based on the grounds listed in her Application. At the time of her Application, the applicant was being followed up for possible cancerous lesions in areas of her body, for which she said she repeatedly sought care from the respondent. Since then, a diagnosis of cancer has apparently been made.
4At approximately the same time as she filed this Application, the applicant filed a complaint with the College about the substandard care she alleges she received from the respondent. At the time he filed his Response, Dr. Casserly asked the Tribunal to dismiss or defer the Application on the basis of this concurrent complaint to the College.
5At this stage, the College proceeding is not complete. The applicant enclosed two letters from the College with her Reply. The first letter summarized the content of her complaint and the second letter, dated June 7, 2010, advised the applicant that the Inquiries, Complaints and Reports Committee will consider her complaint at its meeting on July 21, 2010, and that she would receive the decision of the Committee approximately 12 weeks later.
6Given that the College process is ongoing, it would not be appropriate to dismiss this Application on this basis. Section 45.1 requires the other proceeding to have "dealt with" the substance of the application. However, deferral may be appropriate in these circumstances.
7Rule 14.1 of the Tribunal's Rules of Procedure states that the 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. The Tribunal will 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.
8In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:
Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
Some 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.
9The applicant opposes the deferral on the basis that she does not allege discrimination in her complaint to the College about the respondent. It is clear from the correspondence, however, that the complaint does deal with the exact same factual allegations as the Application. In addition, the theory of the case to the College, as reproduced in the first letter from the College and the applicant's follow-up correspondence, suggests a significant overlap. Specifically, the applicant is alleging the respondent:
- "failed to provide care and treatment" of her complaints of pain;
- "acted in an unprofessional manner" by making "demoralising, prejudiced and insulting comments" to her;
- "failed to provide appropriate follow-up";
- maintained inadequate medical records that made repeated references to irrelevant factors such as "jail" and "ODSP";
- failed to provide "routine patient care"; and
- breached the trust between patient and doctor by "not acting appropriately, not treating [her] medical issues seriously, and not acting in a reasonable amount of time with regard to [her] ongoing medical problems."
10There is potential for duplication of evidence in two concurrent proceedings and the possibility of inconsistent findings of fact and law. It is clear that many of the issues of concern to the applicant relate to the care she received from the respondent. The findings of the College, which has expertise in competency issues related to physicians, may assist this Tribunal in determining whether one or more of the prohibited grounds of discrimination was a factor in the respondent's treatment of her. In light of the significant overlap in issues, deferral is the most fair, just and expeditious way of proceeding with the Application.
11Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the proceeding before the College.
12Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).
13I am not seized of this matter.
Dated at Toronto, this 27th day of July, 2010.
‘Signed by”
Naomi Overend
Vice-chair