Trozzi v. College of Nurses of Ontario, 2010 HRTO 1892

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Esther Trozzi Complainant

-and-

Ontario Human Rights Commission

-and-

College of Nurses of Ontario Respondent

INTERIM Decision

Adjudicator: Eric Whist Date: September 17, 2010 Citation: 2010 HRTO 1892 Indexed as: Trozzi v. College of Nurses of Ontario

APPEARANCES

Esther Trozzi, Complainant: Laura Britten, Student-at-Law, and Judith McCormack, Counsel Ontario Human Rights Commission: Brian Smith, Counsel College of Nurses of Ontario, Respondent: Raj Anand and Farah Malik, Counsel

INTRODUCTION

1The complainant, Esther Trozzi, alleges that the respondent, the College of Nurses of Ontario (the "College"), discriminated against her on the basis of disability contrary to section 6 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Section 6 of the Code states that every person has the right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination on prohibited grounds. The complainant originally filed a Complaint with the Ontario Human Rights Commission (the "Commission") on January 3, 2005, naming the College and several of its members as respondents. The Commission referred only the Complaint against the College to the Tribunal on September 25, 2007.

2The College is a regulatory body whose mandate arises from the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended ("RHPA") and the Nursing Act, 1991, S.O. 1991, c. 32, as amended. The College has a statutory duty to govern the nursing profession in Ontario and to protect the public interest. Part of the College's responsibility is to administer the registration of Registered Nurses ("RN") and Registered Practical Nurses ("RPN") including setting registration exams and issuing certificates of registration, also referred to as licenses.

3The complainant and Commission contend that the College's Registration Committee discriminated against the complainant on the basis of disability by placing a number of unnecessary conditions on her RN and RPN certificates of registration and by including on her certificates of registration the notation, "Monitoring by Registration Committee (Conditions)". The complainant expressed concerns to the Committee that prospective employers would unfairly assume that her disabilities would pose a serious risk of poor job performance. The complainant subsequently appealed the College's decision to place conditions and the related notation on her RN license to the Health Professions Appeal and Review Board ("HPARB"), which dismissed her appeal. The complainant did not appeal the decision made by the College to place conditions and the related notation on her RPN license.

4This Interim Decision addresses a Request for an Order During Proceedings (the "Request") made by the respondent to dismiss the Complaint. A one-day preliminary hearing was held to hear the parties' arguments in relation to this Request.

5The respondent argues that the Complaint is an abuse of process in that the complainant is seeking to re-litigate decisions made by the College and HPARB. The respondent asks that the Complaint be dismissed pursuant to section 45.1 of the Code.

6The respondent also raises issues with respect to the adjudicative and statutory immunity of the Registration Committee of the College, deliberative secrecy, as well as the prohibition on collateral attack on statutory decisions.

7The complainant and Commission oppose the Request, arguing that the Complaint should proceed to be heard by the Tribunal on its merits. They maintain that HPARB did not appropriately consider the substance of the Complaint when deciding the complainant's appeal of the conditions on her RN license.

8A brief chronology of key events, based on the hearing briefs and extensive supporting documentation submitted by the parties, follows. It appears that most of this chronology is not in dispute, although the parties clearly have different views as to the significance of various events and documents.

Chronology

9In 1999 the complainant graduated from a registered practical nursing program and passed the registration exam. Instead of obtaining registration as an RPN she decided to continue her education and become an RN.

10The complainant applied to write the required examination for registration as an RN in October 2003 and in March 2004. On both occasions the applicant sought accommodation of her medical conditions, clinical depression and fibromyalgia, and the respondent provided this accommodation. The complainant was successful on her RN examination.

11The Executive Director and Registrar of the College was aware of the basis for the complainant's accommodation request and was concerned the complainant's medical conditions might affect her ability to practice nursing safely. On May 28, 2004, the Executive Director and Registrar of the College wrote to the complainant to advise that her application for registration as an RN would be referred to the Registration Committee of the College in accordance with section 15 of Schedule 1 of the RHPA, which allows the Registration Committee to impose terms, conditions or limitations on a certificate of registration

12The complainant made written submissions to the Registration Committee about whether her disabilities had an impact on her ability to function as an RN. The complainant advised that the only functional limitations arising from her conditions related to fatigue and concentration, and that she had successfully managed these limitations during her practical placements by working fewer shifts and taking extra time to prepare and administer medications and other tasks that required focused concentration. The complainant also provided letters in support from her three clinical program supervisors from her graduating year, her attending physician and the social worker who was providing her with psychotherapy.

13On August 27, 2004, the Registration Committee notified the complainant that a certificate of registration as an RN would be issued to the complainant subject to 13 conditions. The conditions were primarily in relation to how the applicant would manage her medical conditions (e.g. continue to obtain treatment from her psychotherapist) and monitoring by the College (e.g. the complainant shall not substitute for her psychotherapist without obtaining agreement of Executive Director of the College or an order from the Committee). Condition 4 required that, prior to obtaining any employment in nursing, the complainant would advise prospective employers of the fact that she was subject to conditions and after being hired that her employers would communicate with the College any instances in which the complainant's health condition affected her ability to practice nursing.

14The College is of the view that the complainant subsequently signed the required acknowledgement accepting these conditions and consequently it was not required to produce written reasons to explain its decision to require conditions. The complainant disputes whether she formally accepted these conditions.

15On October 18, 2004, the complainant wrote to the College seeking a modification of Condition 4. The complainant explained that she was concerned prospective employers would make assumptions about her once they were told that her registration had conditions. She feared employers would assume that her conditions were related to professional misconduct and if she clarified they were disability-related, the prospective employer would believe that her disability posed a serious risk of poor performance. She also stated, "I do not object to the College of Nurses monitoring my medical condition through my doctors and employers but I do object to notifying prospective employers of the fact that my Certificate is subject to Conditions".

16The complainant concludes her letter by indicating that she wished to appeal the requirement that her license have conditions and, in particular, Condition 4.

17On November 10, 2004, a panel of the Registration Committee decided to remove Condition 4 but determined the other conditions would remain and that the complainant was precluded from or any further changes to her conditions for six months by the requirements of section 19 of the RHPA.

18On December 10, 2004, the complainant wrote to HPARB to state that she was seeking a review of the conditions on her RN license. The complainant indicated that she was also concerned that her license had specifically typed on it "Monitoring by Registration Committee (Conditions)" which she stated would also lead prospective employers to wrongly assume that she was guilty of professional misconduct. The complainant advised HPARB that she had a position at an agency until she revealed to it that her license was subject to conditions and that the agency subsequently told her it would not send nurses with conditions on their licenses to certain hospitals because the hospitals refused to consider such nurses. The applicant stated that she felt she would have to reveal to prospective employers that she had disabilities or if she did not, that she might be subject to later termination for failing to reveal these conditions. The applicant requested that HPARB conduct its review based on written submissions and documentary evidence rather than an oral hearing. The documents considered by HPARB and the applicant's submissions were before me (the College's submissions to HPARB were not).

19On November 6, 2005, HPARB issued its written reasons confirming the Registration Committee's decision to subject the complainant's RN certificate of registration to conditions. HPARB found that the placing of conditions on the complainant's certificate of registration was within the proper mandate and responsibility of the College and that "the Board accepts that the College has discharged its duty to accommodate Ms. Trozzi on account of her disability." HPARB further stated that the notation of the existence of conditions on the certificate of registration was not discriminatory as the notation was "not of her disability but of the existence of conditions". The complainant did not seek a judicial review of HPARB's decision.

20In July 2007, the complainant submitted further medical evidence to the College. The College's Registration Committee considered this information and subsequently decided to remove all the conditions on the complainant's certificate of registration as an RN.

21In September 2004, the complainant formally applied for a certificate of registration as an RPN. On November 10, 2004, the Registration Committee issued a certificate of registration to the complainant as an RPN subject to the same conditions as were initially on the complainant's RN license but with the elimination of Condition 4. The complainant did not sign the required acknowledgement accepting these conditions and no certificate of registration was issued. On May 11, 2005, the Registration Committee issued its reasons for imposing conditions on the complainant's RPN licence. The complainant did not appeal this decision to HPARB.

22When the applicant registered as an RPN on March 13, 2009, her certificate of registration was issued without conditions.

ANALYSIS

23I begin by restating a number of foundational principles enunciated by the Tribunal in Campbell v. Toronto District School Board, 2008 HRTO 62. The Code is an important public policy statute protecting rights that are quasi-constitutional in nature. These rights are meaningless without access to a mechanism for their enforcement. The Tribunal provides the opportunity for persons to pursue their rights under the Code. The Tribunal provides leadership in the interpretation and application of the Code. At the same time, responsibility for the administration of justice and the enforcement of legal rights is spread across a range of courts and tribunals and these other adjudicative bodies have the responsibility and jurisdiction to apply the Code in the context of their own statutory mandates, following Tranchemontagne v. Ontario (Director, Disability Support Program, [2006] 1 S.C.R. 513, 2006 SCC 14 (Can LII).

24So under what circumstances can a person come to the Tribunal where another tribunal may have already considered a claim of discrimination under the Code? The doctrine of abuse of process recognizes that public and private interests require finality in litigation and the need to avoid duplication in the adjudication of cases which raise substantially the same issues in more than one forum, including alleged violations of the Code. On the other hand, there is an issue of ensuring that a person's rights under the Code are protected. The possibility that the Tribunal would deal with a matter that has already been dealt with by another tribunal is specifically contemplated by section 45.1 of the Code. Whether the complainant in this case can now come to the Tribunal is an issue that must be addressed in relation to both section 45.1 of the Code and the doctrine of abuse of process.

Section 45.1

25In interpreting and applying section 45.1, Campbell identified the following principles:

• Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;
• The discretion given to the Tribunal in section 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process;
• In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;
• The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.

26Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

27In Campbell, supra, the Tribunal held that section 45.1 should be considered in two parts:

1. was there another proceeding?
2. If so, did it appropriately deal with the substance of the application?

28I am satisfied that the proceeding before HPARB, a statutorily mandated process intended to resolve disputes between parties, constitutes a proceeding within the meaning of s.45.1. This was not disputed by the parties.

29I am also satisfied that HPARB squarely had before it the issue of whether the conditions of the applicant's RN certificate of registration were discriminatory and whether the College had met its duty to accommodate the complainant. This is the substance of the Complaint before the Tribunal. This was also not in dispute.

30The first contested issue before me is whether HPARB appropriately dealt with the substance of the Complaint. The respondent argues that HPARB is required to consider and apply the Code and did so in relation to the explicit human rights issues raised by the complainant before it. The respondent argues the Tribunal is not required to be satisfied that it would reach the same conclusion that is reached by another tribunal and that it is well established that the Tribunal does not act as an appellate court from the decisions of other tribunals. The respondent further submits that it is not the Tribunal's job to carefully parse the reasons issued by a previous decision-maker to determine whether they meet the standard set for itself as a specialized human rights body.

31The complainant argues that HPARB took only a perfunctory look at the human rights issues she raised before it and applied the wrong legal principles and analysis to these issues. Specifically, the complainant submits that HPARB determined that the respondent had a duty to reasonably accommodate the applicant and found that the imposed conditions were "reasonable and within the proper mandate and responsibility of the College" and that consequently the College had discharged its duty to accommodate. The complainant argues that under the Code, HPARB had to determine whether the conditions imposed on the complainant accommodated her disabilities up to the point of undue hardship. The complainant submits that the distinction between reasonable accommodation and accommodation to the point of undue hardship is not a mere technicality but rather it represents a substantive difference in assessing the nature and scope of the accommodation required. According to the complainant, HPARB should have assessed whether the College had investigated alternative approaches to accommodating the complainant that did not have a discriminatory impact or whether the College had been able to meet its legitimate objective to protect the public interest in a less discriminatory manner.

32The complainant further submits that HPARB did not adequately deal with the complainant's concern about the notation on her RN license stating "Monitoring by Registration Committee (Conditions)". The complainant contends that HPARB's conclusion that this notation is not discriminatory because all conditional licenses bear this notation fails to understand that the complainant is adversely impacted by this notation in terms of seeking employment as she is labelled in the same manner as a nurse who has been guilty of professional misconduct.

33The Commission takes a position, similar to that of the complainant, that HPARB did not conduct an appropriate analysis of the applicable human rights principles and too readily deferred to the College's decisions that were arrived at without consideration of appropriate human rights principles. The Commission argues that this is evident by the fact that HPARB did not include relevant sections of the Code in its decision, quoting sections 5 and 6 and not referring to section 10(1)(b), which clarifies that disability includes a mental disorder, and, most importantly, not referring to section 17(2) which requires a tribunal or court to consider whether the needs of a person cannot be accommodated without undue hardship. The Commission further submits that the HPARB decision misstates the applicable standard for accommodation (reasonable rather than to the point of undue hardship) and does not contain an individualized assessment of the nature or scope of any risk that might be associated with an unconditional or less restrictive RN license or why each of the conditions was necessary to avoid undue hardship.

34While the focus of the parties was very much on whether HPARB appropriately dealt with the applicant's RN license, there is the further issue of whether the Registration Committee appropriately dealt with both the RN license and the RPN license. I will also deal with this issue.

35Dismissal under section 45.1 is a discretionary remedy. In Jarvis v. Sheet Metal Workers' International Association, 2009 HRTO 121, the Tribunal noted that although the discretion given to the Tribunal under section 45.1 is broad, the Tribunal's exercise of the discretion is based on the application of certain factors to the circumstances of each case. Jarvis identifies that some of the factors the Tribunal has considered in cases under section 45.1 as:

• The purpose of the other statutory scheme and its relationship to the Code;
• Whether the other proceeding decided the same questions;
• Whether human rights principles were applied in the other proceeding;
• The nature of the process applied in the other proceeding and the availability of procedural safeguards.

36The issue in the present case is whether HPARB applied human rights principles in considering the conditions on the complainant's RN license. In my view this can be restated as "were human rights principles appropriately applied in the other proceeding". If such principles were not appropriately applied, a determination cannot be made that another proceeding appropriately dealt with a human rights issue before it. I agree with the Tribunal in Boncori v. TRW Canada Limited, 2008 HRTO 178, when it states:

In determining whether the matter was "appropriately dealt with" in the other proceeding, the appropriate role for the Tribunal is to determine whether the arbitrator proceeded fairly and upon the proper principles, with due consideration of the facts and human rights law relevant to the discrimination issue before him

37It is also important that when the Tribunal considers whether another tribunal applied the relevant human rights principles that it does not, as stated in Rao v. McMaster University, 2010 HRTO 1051, go so far as to consider whether the conclusion reached by the other tribunal upon application of those principles and law is correct or reasonable. This would be to act as an appellate court.

38In my view HPARB's decision does not appropriately deal with the substance of the Complaint. HPARB's decision refers to the College having reasonably accommodated the applicant, noting that the imposition of conditions to ensure safe nursing practices was within its mandate and is part of the College's duty to protect the public. What HPARB failed to do was assess whether the specific conditions on the complainant's registration set by the College were reasonably necessary to ensure safe nursing practices or whether the College could have accommodated the applicant in alternative ways without causing undue hardship. This is a misapprehension of the relevant human rights principles.

39In the Supreme Court of Canada's decision in British Columbia (Public Services Employee Relations Commission v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 ("Meiorin"), the Court identified the nature of the duty to accommodate as follows:

the respondent bears the onus of demonstrating that in adopting a standard or requirement for legitimate purposes, it is impossible to accommodate a person with a disability without imposing undue hardship. (at para. 54).

40HPARB identified the College's legitimate standard as the need to ensure safe nursing practices. In the present case undue hardship for the College would be to risk safe nursing practices when accommodating the complainant.

41The Meiorin decision continues:

Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated. Apart from individual testing to determine whether the person has the aptitude or qualification that is necessary to perform the work, the possibility that there may be different ways to perform the job while still accomplishing the employer's legitimate work-related purpose should be considered in appropriate cases. The skills, capabilities, and potential contributions of the individual claimant and others like him or her must be respected as much as possible. Employers, courts and tribunals should be innovative yet practical when considering how this may be best done in particular circumstances.

Some of the important questions that may be asked in the course of the analysis include:

(a) Has the employer investigated alternative approaches that do not have a discriminatory effect such as individual testing against a more individually sensitive standard?

(b) If alternative standards were investigated and found to be capable of fulfilling the employer's purpose, why were they not implemented?

(c) Is it necessary to have all employees meet the single standard for the employer to accomplish it legitimate purpose or could standards reflective of group or individual differences and capabilities be established?

(d) Is there a way to do the job that is less discriminatory while still accomplishing the employer's legitimate purposes?

(e) Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?

f) Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? ( at paras. 64-65)

42I am not satisfied that HPARB's decision demonstrates the application of the human rights principles set out in Meiorin. It is not clear that HPARB considered whether there were alternative conditions that could have been set for the complainant that were less discriminatory but might still meet the College's legitimate interest to ensure safe nursing practices. HPARB's baldly stated determination that the conditions were reasonable and within the College's proper mandate does not demonstrate that HPARB appropriately followed the legal analysis required by Meiorin, which states the fundamental principles of the duty to accommodate in human rights law.

43The respondent submits that the complainant extensively argued and provided to HPARB the entire Commission Policy and Guidelines on Disability and the Duty to Accommodate, a policy that refers to the legal principles included in section 11 and 17 of the Code, an analysis of the Meiorin decision and the principles of undue hardship, so this information was before HPARB. This may be, but there is nothing in HPARB's decision to reflect that it considered and applied the required human rights principles in making its determinations.

44In this respect I agree with the Commission that HPARB's quoting in full only section 5 (which prohibits discrimination with respect to employment), section 6 (which prohibits discrimination in membership in self-governing professions) and section 10(1)(a) (which defines physical disabilities) of the Code and failing to refer to section 17(2) of the Code is telling. Section 17(2) requires that no tribunal or court shall find a person incapable of performing essential tasks or requirements attending the exercise of a right unless it is satisfied that "the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any."

45The respondent submits that the HPARB decision does apply the right test for accommodation when it refers to the duty to reasonably accommodate as this is not a distinct test from a duty to reasonably accommodate up until the point of undue hardship. The respondent cites two instances where the Supreme Court refers to the term reasonable accommodation in reference to the duty to accommodate:

Viewed as a whole the Agency's reasons show that [it] approached and applied mandate reasonably. In particular and more significantly it complied substantially with this Court's direction in British Columbia (Public Services Employee Relations Commission v. BCGSEU 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 ("Meiorin") assessing reasonable accommodation and applied burden of proof.

Abella, J. in Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SCC 15.

The use of the term "undue" infers that some hardship is acceptable; it is only "undue" hardship that satisfies this test. The extent to which the discriminator must go to accommodate is limited by the words "reasonable" and "short of undue hardship". These are not independent criteria but are alternative ways of expressing the same concept.

Sopinka, J. in Central Okanagan School District No. 23 v. Renaud, [1992] 2. S.C.R. 970, 1992 CanLII 81.

46I do not find this argument persuasive in light of the fact that the duty to accommodate as articulated by the Supreme Court, primarily in Meiorin, speaks to a process by which the interest in a legitimate standard has to be balanced with the duty to accommodate to the point of undue hardship and that this requires a careful examination of the standard and the individualized need for accommodation. As stated in Meiorin:

It may be ideal from the employer's perspective to choose a standard that is uncompromisingly stringent. Yet the standard, if it is to be justified under the human rights legislation, must accommodate factors related to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship. (at para. 62)

47The issue with the HPARB decision is that it simply declares that the conditions imposed by the College are reasonable and within the mandate of the College without any evidence of an examination of why the conditions set for the complainant are necessary to meet the College's requirements, or any analysis or even reference to the risks of alternative or reduced conditions. The decision makes no reference to why it rejected the complainant's request for no conditions on her certificate of registration.

48I am of the further view that HPARB that did not appropriately address the issue of the whether the notation on the complainant's license violated the Code. As noted earlier, the complainant's contention is that this notation ("Monitoring by Registration Committee (Conditions)") had a discriminatory effect on her efforts to find employment in that prospective employers interpreted this notation to mean she had been subject to professional misconduct. The complainant cited a particular instance in part of her submissions to HPARB in which she was told by an employment agency that certain employers would not even consider persons with this notation on the belief it referred to RNs who were guilty of professional misconduct. The complainant further submits that in order to prevent prospective employers from assuming she had been subject to professional misconduct, she believed she would be obliged by the notation to reveal that she had a disability prior to being considered for employment.

49In its decision HPARB simply states, "Every conditional license bears this notation on its face and Ms. Trozzi is no exception. The fact this notation is on her license is not in itself discriminatory the notation is not of the disability but of the existence of conditions". In my view, the complainant clearly raised in her arguments before HPARB the issue of adverse impact discrimination. This is a well-established human rights principle and it was not addressed by HPARB in its decision.

50Accordingly, I conclude that the substance of the human rights issues raised in this Complaint have not been appropriately dealt with in another proceeding. While these issues were raised and decided by HPARB, I find that it did not apply the principles of undue hardship and adverse impact and reflect the application of these principles in its reasons.

51For all of the above stated reasons, I choose not to exercise my discretion to dismiss the Complaint regarding the complaint's RN certificate under section 45.1. In light of this decision, I reject the respondent's further argument that since HPARB considered and applied human rights principles in dismissing the complainant's request for a review of the conditions of her RN license, her complaint about identical conditions on the complaint's RPN certificate should be dismissed.

52It is perhaps relevant to note here that HPARB was considering whether the College had discriminated against the applicant in the context of the College carrying out its statutory mandate to protect the public interest (section 3(2) of the Health Professions Procedural Code) and to issue a certificate of registration only on condition that the recipient not suffer from a mental or physical condition or disorder that makes it desirable in the public interest that she or he not practise nursing (5(3) of O.Reg. 275/94 under the Nursing Act, supra). However, there were no arguments before me to suggest that this statutory framework was analyzed by HPARB as having a particular bearing on the respondent's abilities to meet its duties under the Code, and as such was a factor that I should consider in my decision.

53The respondent also argued that the processes before the Registration Committee regarding the complainant's RN and RPN licenses alone constitute proceedings within the meaning of section 45.1. However, it is not clear to me that section 45.1 can be applied to the College's Registration Committee process in this case. The very basis of the Complaint before the Tribunal is that the Registration Committee's actions in requiring the complainant to meet certain conditions in order to be issued an RN and an RPN license were discriminatory. In my view, section 45.1 applies to situations in which there is a proceeding that subsequently considers the events that give rise to a complaint of discrimination, and the Tribunal must consider whether such a proceeding appropriately dealt with the substance of the complaint. It is true that the Registration Committee was, at a certain point in time, aware of the applicant's concerns about the conditions and responded (for example removing Condition 4). However, this action did not address the whole substance of the Complaint before the Tribunal, which was filed after the removal of Condition 4 on the complainant's RN license.

54Moreover, I am of the view that the Registration Committee's considerations of the complainant's concerns about her conditions on both her RN and RPN licences do not constitute proceedings within the meaning of section 45.1. In Maurer v. Metroland Media Group, 2009 HRTO 200, the Tribunal determined that an internal employer investigation did not constitute a proceeding under section 45.1 on the basis that "a purely private, internal process established by an employer, without formal guarantees of procedural fairness, impartiality or independence, cannot deprive the applicant of the right to pursue a remedy under the Code". While the Registration Committee did, in my view, generally recognize the importance of procedural fairness in responding to the complainant's concerns, its proceedings cannot be considered to be impartial or independent, and as such are not proceedings within the meaning of section 45.1.

Abuse of Process

55The respondent also submits that the Tribunal should dismiss the Complaint as an abuse of process. The respondent argues that this doctrine is intended to prevent the re-litigation of matters that have already been decided and that the Tribunal can consider "any potential injustice", as stated in Snow v. Honda of Canada Manufacturing, 2007 HRTO 45 at para. 57, in applying this doctrine.

56In addition to its arguments with respect to the substance of the HPARB decision, the respondent submits that the complainant did not take the steps available to her to challenge the HPARB decision by seeking a judicial review or by appealing the conditions on her RPN license to HPARB. Moreover, the complainant now holds RN and RPN licenses without conditions; therefore, it would be an abuse of process to require the respondent to be subject to yet another proceeding involving human rights issues and that the HPARB decision should be considered final.

57The complainant and Commission take the position that the doctrine of abuse of process does not apply in this instance because the complainant has not yet had a full and fair hearing of her rights under the Code. They argue that there is no duplication of proceedings when a previous decision does not deal with the merits of a complaint as required by the Code and where the previous decision does not apply the essential legal principles and analysis. Fairness, the complainant and Commission submit, dictates that the administration of justice would be better served by permitting her complaint to go forward, rather than insisting that finality should prevail.

58The Supreme Court of Canada in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 ("CUPE"), held that abuse of process may apply to prevent re-litigation of issues previously determined in a different proceeding. As the Court stated:

...Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. (at para. 37)

59However, the Court went on to state:

It is therefore apparent that from the system's point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. (at para. 52)

60There is no issue in the present case of a proceeding tainted by fraud or involving new evidence. The issue is whether "fairness" suggests that re-litigation will enhance rather than impeach the integrity of the judicial system. In Snow, supra, the Tribunal canvassed cases in which the Supreme Court's reasoning in the CUPE decision was applied by the Tribunal in dealing with the issue of abuse of process and referred in particular to the decision in Cremasco v. Canada Post Corp. (2002), 2002 CanLII 61852 (CHRT), 45 C.H.R.R. D/410 stating at para. 56:

In Cremasco, Tribunal, supra the Tribunal asked itself the question: "Would it be fair to proceed?" The Tribunal also stated that the public perceives the human rights process as an integral part of the justice system. Therefore, if the reputation of the larger system is to be preserved, one must consider whether, in the view of reasonable and informed but ordinary people, it would be fair to proceed with the complaint, where the issues before the Tribunal have already been heard and determined in a different forum.

61In my view, fairness dictates that the complainant's case proceed to be considered on its merits, for the same reasons discussed above in the analysis under section 45.1. The public and private interests in the finality of litigation are outweighed by the need for the complainant to have her Complaint appropriately considered under the Code, and this is explicitly recognized in section 45.1. The fact that the complainant has now had all conditions removed from both her licenses is not a sufficient reason to prevent her from pursuing her Complaint. The fact that the complainant did not pursue a judicial review of HPARB's decision or seek a review of the Registration Committee's decision in relation to her RPN license is also not enough to conclude that pursuing her Complaint with the Tribunal is an abuse of process. The existence of other potential processes to consider the complainant's allegations of discriminatory treatment in this case are not sufficient to oust the Tribunal's jurisdiction to hear the complainant's allegations that her rights under the Code have been violated.

Should this Complaint be dismissed on principles of adjudicative immunity, deliberative secrecy or collateral attack?

62The respondent argues that the Registration Committee is a tribunal duly constituted under the RHPA and as such its decisions are immune from review and its members are protected by the principle of deliberative secrecy. The respondent argues that it would not be practically able to defend itself in a human rights proceeding as it cannot and should not be forced to contravene the confidentiality, compellability and evidence restrictions under the RHPA. Moreover, the RHPA grants immunity from claims for damages to committee members of the College. The respondent cites the following sections of the RHPA in support of these arguments:

36(1) Every person employed, retained or appointed for the purposes of the administration of this Act, a health profession Act or the Drug and Pharmacies Regulation Act and every member of a Council or committee of a College shall keep confidential all information that comes to his or her knowledge in the course of his or her duties and shall not communicate any information to any other person except ...

36(2) No person or member described in subsection (1) shall be compelled to give testimony in a civil proceeding with regard to matters that come to his or her knowledge in the course of his or her duties.

36(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

38. No action or other proceeding for damages shall be instituted against the Crown, the Minister, a College supervisor appointed under section 5.0.1 or his or her staff, an employee of the Crown, the Advisory Council, a College, a Council, or a member, officer, employee, agent or appointee of the Advisory Council, a College, a Council, a committee of a Council or a panel of a committee of a Council for an act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act, a health profession Act, the Drug and Pharmacies Regulation Act or a regulation or a by-law under those Acts or for any neglect or default in the performance or exercise in good faith of the duty or power.

63The respondent further maintains that the doctrine of collateral attack precludes the complainant from re-litigating the findings of the Registration Committee and HPARB.

64The complainant denies that the immunity provisions of section 38 of the RHPA protects the respondent in this matter, arguing that a violation of the Code constitutes a prima facie lack of good faith. Alternatively, the applicant argues that the Code has primacy over section 38 of the RHPA as a consequence of section 47(2) of the Code. The Commission supports the primacy argument and argues a human rights complaint cannot be characterized simply as an action or proceeding for damages given the authority of the Tribunal to order public interest remedies.

65The complainant submits that deliberative secrecy is not an applicable principle in this matter, that it is a form of privilege that is not required as the complainant intends to rely on materials already disclosed by the respondent in any proceeding before the Tribunal.

66The complainant argues that the rule against collateral attack is designed to bar actions intended to overturn previous decisions, not simply to re-litigate their facts, and that legal challenges to litigation are more appropriately addressed under the doctrine of abuse of process.

67I am not satisfied that the Registration Committee carries out a function that suggests that it should be protected by the principle of adjudicative immunity nor that the RHPA's statutory provisions regarding immunity bar a decision of the Committee from being subject to a human rights complaint. The Registration Committee is an internal committee of the College appointed by College's Board, the majority of whom are elected by members of the College. Applications for registration are reviewed by a panel of the Registration Committee to determine whether to grant the benefit of registration. The panels are not required to hold hearings. In my view the Registration Committee does not act as an impartial, independent adjudicator resolving disputes between parties before it (in effect, carrying out a judge-like function), and accordingly, I do not find that judicial immunity should be provided in relation to its function of deciding on what basis the complainant should be granted an RN or RPN license.

68I note that since the preliminary hearing was held in this case, the Tribunal has been developing its case law on the issue of adjudicative immunity. In my view my decision is consistent with the decisions in Cartier v. Nairn, 2009 HRTO 2208 and Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765. As stated in Dopelhamer at paras. 49-51:

Judicial immunity has not been extended, by the courts or by this Tribunal, to all individuals who make decisions with reference to a statute. The extension of the doctrine has been limited to those responsible for deciding the outcome of a dispute between two or more persons (the term "persons" being used in the extended legal sense). The cases have also focused on individuals functioning as independent and impartial arbiters of such disputes.

As noted in Cartier and Hazel, judicial immunity has been extended to various non-judge decision-makers in respect of their decisions, but it is important to note that the extension has been from the role of judges in court proceedings and is focused on the nature of the service; the function that is performed, which is to be the neutral arbiter of a dispute between two or more persons. The term used in Cartier (at para. 12) was "judicial actors".

Clearly, the reason for judicial immunity is the maintenance of independence in the context of deciding disputes between two or more persons. The doctrine of judicial immunity prohibits legal proceedings against judicial actors which are based on their actions as adjudicators or decision-makers. The doctrine is rooted in the principle of judicial independence, the purpose of which is to ensure that judicial actors are free to execute their decision-making duties with independence and without fear of consequences. (Cartier para. 12, emphasis added)

69It is true that the RHPA expressly indicates in section 38 that College committees are afforded immunity from actions for damages for acts carried out in good faith. However, it is not evident to me that this is a bar to the Complaint proceeding to be heard on its merits, given that a human rights complaint may not only address the issue of financial compensation or other restitution for a person whose rights have been violated under the Code but it can also address the broader public interest in obtaining remedies to promote future compliance with the Code. In my view, the determination of whether damages could be awarded in the present case given the provisions of section 38 of the RHPA is appropriately left to the hearing of the merits of the Complaint.

70It is also true that section 36 of the RHPA indicates that College committee members are bound by confidentiality and are not compelled to give testimony in a civil proceeding. The parties have argued whether a hearing before the Tribunal would constitute a "civil proceeding" as the term is employed in section 36 of the RHPA. However, I do not need to decide the effect of deliberative secrecy unless and until it arises in the context of the evidence which one party or the other seeks to present in the hearing of the merits of this case. In regards to the issue of collateral attack, I am satisfied that the Legislature has addressed this by introducing section 45.1 into the Code and providing the Tribunal with the power to exercise its discretion to hear and determine matters previously decided by another tribunal where that body did not appropriately deal with the human rights issues in dispute.

Should this Complaint be dismissed for lack of jurisdiction?

71The respondent takes the position that the complaint is beyond the jurisdiction of the Tribunal in that the College has never made a decision which rejected the complainant's position or operated to her disadvantage or without her agreement, that the ultimate decision-maker in relation to the complainant's RN status was HPARB which is not a party to the complaint.

72In my view, the claims that the College never made a decision against the complainant's position or to her disadvantage or without her agreement are very much in dispute. The complainant has clearly indicated through her complaint that she objects to the conditions that were imposed on her by the Registration Committee and this central contention clearly falls within the Tribunal's jurisdiction. The fact that HPARB has not been named as a respondent does not render her Complaint regarding the College beyond the Tribunal's jurisdiction.

73The respondent's Request for dismissal is denied and this matter proceeds to be heard on its merits.

74I am not seized of this matter.