J.M. v. St. Joseph’s Health Centre, 2010 HRTO 2201

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J. M.

Applicant

-and-

St. Joseph’s Health Centre and Steven Rhee

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: November 3, 2010

Citation: 2010 HRTO 2201

Indexed as: J.M. v. St. Joseph’s Health Centre

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 2, 2009, alleging discrimination on the basis of disability in services.

2The purpose of this Interim Decision is to address a request that I recuse myself from hearing the Application. In view of my decision to deny this request, I also address various outstanding issues including a request to add Dr. Rhee and provide directions regarding the continuation of the hearing.

BACKGROUND

3The Application arises out of the applicant’s interaction with various medical personnel working at or out of St. Joseph’s Health Centre, a hospital, and its mobile crisis unit in the period September 2006 to June 2008. Among other things, the applicant alleges that she was discriminated against on the basis of disability when nurses with the mobile crisis unit attended at her home along with the police and refused her request to decline a mental health assessment, threatened her with criminal arrest and harassed her. The applicant also alleges that she was discriminated against by a physician at the hospital, Dr. Rhee, when he reported her to the Ministry of Transportation because she was suffering from a mental illness. The applicant states that “It appears that the doctor’s decision to report me…was a result of me being arrested under the act rather than a medical diagnosis inferred by observations of mental health instability”.

4The Response denies any violation of the Code. On the issue of the allegations pertaining to Dr. Rhee, the respondent states that it is not responsible in law for the conduct of any of the physicians who were involved in the applicant’s care as physicians are independent practitioners who exercise their independent medical judgment in providing care to patients including any decision of a physician to notify the Ministry.

5On July 13, 2010, the Tribunal scheduled a hearing for November 8, 2010. The respondent requested a re-scheduling of that date.

6On August 20, 2010, I held a conference call with the parties to hear submissions on a Request for Order During Proceeding filed by the applicant to amend the Application and a number of issues identified in correspondence filed by the parties. Submissions were heard and rulings made on all outstanding issues. On agreement of the parties, I ruled that the hearing would be bifurcated and the request to amend the remedy being sought be held in abeyance pending the determination of liability. I also directed that additional particulars and responses be filed in accordance with certain deadlines. By Case Assessment Direction dated August 23, 2010 I confirmed the rulings made.

Request to Recuse

7On September 15, 2010, the applicant filed a Request for Order During Proceeding requesting that I recuse myself from hearing the Application (the “Request”). On October 4, 2010, a one hour conference call was held for the purpose of hearing the Request. I heard further submissions from the applicant as well as submissions from the respondent. Following the conference call the applicant filed further submissions on October 8 and 12, 2010. I have considered all of the submissions received in determining this issue.

8The applicant’s concerns appear to arise primarily from the conference call. She states that I gravely prejudiced her Application by asking her a question in the conference call which she states was: “[is there] anything in the Minutes of Settlement that she entered into…in relation to a 2005 Human Rights complaint that affected the Respondents” in the absence of a formal Request for Order During Proceeding (“RFOP”) being brought from the respondent. The applicant suggests that I asked this question at the request of respondent counsel. In addition, the applicant states that I denied her procedural fairness by requiring her to file her documents before the respondent had answered questions she posed in her Reply as to whether or not the nurses had the right to infringe on the complainant’s rights and conduct themselves as they did and whether Dr. Rhee was justified in notifying the Ministry of Transportation. The applicant states that when she raised her concern in the conference call I asked her not to interrupt and did not appreciate that the issue had been raised much earlier in her Reply.

9In her most recent submissions, the applicant articulates what appears to be a general concern about the Tribunal permitting the respondent to ignore its Rules and protocol (including making requests without an RFOP). She also states that the Tribunal has delayed dealing with a “disclosure issue”, although based on the submissions made it is unclear what disclosure issue is being referenced.

10The respondent indicates that it takes no formal position on the request that I recuse myself. However, respondent counsel states that she recalls the conference call very differently both in terms of the question raised, and also the description of my conduct generally in chairing the conference call.

11The legal principles to be applied in considering apprehension of bias are well established. In Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1S.C.R. 369 at page 394, De Grandpre J. stated:

…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

12Having regard to the evolving nature of the applicant’s submissions, I will separately address the conference call and her subsequent general concerns. In my view, and applying the standard, my conduct of the conference call and the conduct of the proceeding to date do not raise a reasonable apprehension of bias.

13I do not accept the applicant’s description of the conference call. While I can appreciate that perceptions are variable, the description of what transpired does not accord with my record of the conference call.

14By letter dated August 9, 2010, the Registrar had proposed dates for a conference call for the purpose of hearing submissions on various issues; the letter specifically identified that it would include the applicant’s Request for Order During Proceeding filed July 21, 2010 seeking an amendment to the Application (the “Request seeking an Amendment”) and the other issues raised in the recent correspondence of the parties.

15In the Response to the Request seeking an Amendment, the respondent had repeated again its concern about the allegations that appeared to relate to the alleged report by Dr. Rhee and stated that any allegations are properly directed at Dr. Rhee personally and therefore the applicant has not named the appropriate respondent. The respondent went on to state as follows:

The Hospital also submits to the Tribunal that if the Applicant has filed other Applications with the Tribunal relating to the conduct of Dr. Rhee, the alleged revocation of her driver’s licence, or the conduct of Toronto Police Service Personnel who worked in conjunction with the Hospital’s nursing staff on the occasions described in the Application, the Tribunal ought to give consideration to consolidating or joining all such related Applications, and/or ordering their hearing together, so as to promote efficiency and avoid the risk of inconsistent findings or “double recovery”.

The Hospital observes that the existence and particulars of any other such Applications commenced by this Applicant are unknown to it at this time, and are instead within the exclusive knowledge of the Tribunal and the Applicant, which makes it impossible for the Hospital of its own accord to bring a Request for an Order seeking their joinder or hearing together with this Application.

16Given that one of the purposes of the call was to consider the applicant’s Request, and having regard to the Response received (and the absence of any reply from the applicant on this point), I sought clarification at the outset of the conference call as to whether or not there were other pending applications relating to the same events set out in the Application. The applicant did not identify that she had any concerns about answering the question, although it was apparent to me that she misunderstood the question as she began answering that she had reached a “settlement” in a prior application and began making comments about it. I interjected and explained that I did not want to hear any details about any settlements as it was likely confidential and restated again what I was asking her to respond to. While I had to clarify the issue a few times, ultimately, the applicant answered that there were no other outstanding applications and I proceeded to deal with the remaining issues.

17It is accurate that by raising this issue, I was addressing an issue that was not set out in a Request for Order During Proceeding filed by the respondent, although it was set out in their Response to the Request. I do not find that addressing an issue in these circumstances, in the absence of a formal RFOP, raises a reasonable apprehension of bias. In any event, the Tribunal is mandated to adopt flexible procedures to address the issues before it. I find that seeking clarification on an issue raised in a party’s submissions is entirely in keeping with this mandate.

18I also find that there is no merit to the second basis of the applicant’s request arising from the conference call – which appears to be the requirement that the applicant comply with the requirement to disclose arguably relevant documents prior to the respondent providing particulars and a further response on four specific areas. At the time of the conference call, the respondent had complied with its disclosure obligations regarding documents but the applicant had not disclosed the arguably relevant documents in her possession for the reason that she wanted further particulars of a few specified areas of the response. During the conference call, I addressed the applicant’s request for particulars as well as the fact that she had yet to comply with the disclosure obligations. I sought submissions from the applicant on both the substance of her concerns and my proposed timeframe for compliance i.e. September 3, 2010. After hearing from the parties, I extended the applicant’s deadline until September 7, 2010 at the applicant’s request. In so doing, I recall explaining to the applicant that she was only required to disclose those documents based on her current understanding of the issues in the case. I separately ruled that the respondent provide particulars in response to the applicant’s request and that the applicant separately provide further particulars to the respondent.

19While the applicant is correct that the import of these rulings required her to disclose arguably relevant documents prior to receiving certain particulars, I do not find that this was unfair or unreasonable in the circumstances. As stated, the applicant’s original deadline triggered by the hearing notice had passed, the respondent had filed its documents and I had explained that the applicant would only be required to file the documents based on her understanding of the case. In fact, I did not understand that the applicant had any objection until I received the request to recuse myself. I do not find that in the circumstances described, my conduct can be reasonably viewed as raising any apprehension of bias.

20More generally, I do not find that there is anything in my conduct of the conference call that demonstrates that I was denying the applicant procedural fairness as she alleges or was asking questions because the respondent told me to ask questions or was otherwise conducting the call such that my conduct raises a reasonable apprehension of bias.

21With respect to the recent submissions filed on October 12, 2010, it appears that the applicant is now expressing concerns regarding other aspects of the conduct of the case. I find that these new issues go well beyond the proper scope of reply, which is why the applicant was provided with a further opportunity to provide submissions, as there was insufficient time for the applicant to make her reply during the conference call. However, even considering the substance of the issues, to the extent the concerns are clear, I do not find that they raise a reasonable apprehension of bias. The applicant’s concerns about the Tribunal permitting the respondent to make requests without a formal RFOP on a few issues does not, in my view, reflect a reasonable apprehension of bias. I have permitted both parties to raise certain requests in the absence of an RFOP where it is fair, just and expeditious to do so. For example, in the August 20, 2010 conference call I considered issues of concern to both the applicant (request to extend deadline for disclosure) and the respondent (request for particulars) which had not been identified in a Form 10 (RFOP).

22Finally the applicant raises what appears to be an issue of delay in having a disclosure request addressed and the adjudication of the Application generally. While the issue being raised is not entirely clear, I do not find that the timing of the adjudication of this Application supports any finding that I have a reasonable apprehension of bias.

23In summary, I do not find there is merit in the applicant’s claim that she has been denied procedural fairness or that the circumstances raise a reasonable apprehension of bias. I therefore decline to recuse myself.

The Request to Add Dr. Rhee

24The applicant filed a Request for Order During Proceeding seeking to add Dr. Rhee as a respondent on September 13, 2010. The applicant’s Request was sent to Dr. Rhee and to the respondent Hospital. The applicant has indicated that she mailed a copy of the Application, the Request for Order to add Dr. Rhee and an “Order During Proceedings Request form” to Dr. Rhee at the address he provided the Ontario College of Physicians and Surgeons.

25On September 7, 2010, the respondent Hospital filed a response to the Request. The Hospital states that it takes no position regarding the requested relief to add Dr. Rhee. The Hospital also states that it takes no responsibility for effecting proper service or delivery of materials on Dr. Rhee and nor does it purport to speak on his behalf.

26By Case Assessment Direction dated September 9, 2010, I directed that the respondent deliver a copy of its Response filed July 28, 2009 with the exception of certain documents and the applicant deliver a copy of the Reply filed August 13, 2009 to Dr. Rhee by September 13, 2010. In addition, I directed that the Registrar forward a copy of the Confirmation of Hearing dated July 13, 2010 to Dr. Rhee, along with a copy of the CAD, which I understand was done.

27Dr. Rhee has not provided a response and the time for responding has elapsed.

28In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal stated that when determining a request to add a respondent, it should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

29Applying these questions to the issue before me, I find it is appropriate to add Dr. Rhee. There are allegations made that could support a finding that the proposed respondent violated the Code. In addition, the Hospital has stated that it takes the position that it is not responsible for any decisions made by Dr. Rhee and that concerns about Dr. Rhee’s conduct should be directed at him personally. While Dr. Rhee was not named in the original Application, it appears that the applicant assumed that the Hospital was responsible for his actions. Having regard to these circumstances and the submissions made, I find it appropriate to add Dr. Rhee as a respondent. The style of cause is therefore amended to reflect the addition of Dr. Rhee.

30The Tribunal has previously directed on September 9, 2010 that Dr. Rhee be provided with a copy of the Response and Reply. Having regard to the addition of Dr. Rhee as a party and the stage of this proceeding, I direct as follows:

i. The applicant and St. Joseph’s Health Centre shall provide Dr. Rhee with a copy of any arguably relevant documents in their possession and a copy of any materials they have filed with the Tribunal on the three outstanding Requests for Order During Proceedings (dated September 7, September 19 and October 4, 2010 respectively) within 14 days of the date of this Interim Decision, and file with the Tribunal a Statement of Delivery confirming the delivery of the documents and materials and any other material previously provided to Dr. Rhee pursuant to the Case Assessment Direction of September 9, 2010.

ii. Dr. Rhee may deliver a Response to the Application within 35 days of the date of this Interim Decision. At the time he delivers a Response, Dr. Rhee shall deliver to the other parties a list of arguably relevant documents in his possession and a copy of each document on the list excluding any documents for which privilege is claimed.

iii. The applicant and respondent St. Joseph’s Health Centre may file a reply to the Response of Dr. Rhee within 14 days of the date of the receipt of the same.

31The Registrar should also send to Dr. Rhee a copy of any Interim Decisions and Case Assessment Directions previously issued in this Application that have not yet been provided to Dr. Rhee.

32As a result of the addition of Dr. Rhee and corresponding directions, I confirm that the hearing which was scheduled for November 8, 2010 is adjourned. The Registrar will issue a notice for a new hearing date which shall be scheduled no earlier than 50 days after the date of this Interim Decision.

Request for Recording

33The applicant has requested that she be permitted to record the hearing. The respondent counsel has stated that she supports the applicant’s suggestion that any oral hearing be recorded by certified personnel.

34The Tribunal does not provide certified personnel to record a hearing, but may itself make a digital audio recording of a hearing or permit a party to record a hearing in accordance with the terms of its Practice Direction on Recording Hearings. In the past, where a party has been permitted to record a hearing, the Tribunal has required a copy of the recording be provided to the other parties and the Tribunal if they intend to rely on it at the hearing. Having regard to all of the circumstances, the Tribunal is prepared to make a digital audio recording of the oral hearing and will provide the parties with a copy of the recording. However, the parties should be aware that the Tribunal is unable to guarantee the quality of the recording and therefore the fact that a digital recording is being made should not be seen as a substitution for notes. Further, in accordance with the Practice Direction, the recording will not form part of the Tribunal’s record of proceedings including the record filed in respect of any application made under the Judicial Review Procedures Act.

Outstanding Issues

35Subsequent to the conference call on August 20, 2010, the applicant filed three Requests for Order During Proceedings seeking further disclosure on September 7, 2010, September 19, 2010 and October 4, 2010 respectively. The respondent Hospital has provided a Response to each. Without going into the details, it appears that at least some of the requests may be moot as the Hospital has stated that no further documents exist.

36Having regard to the Responses filed, the applicant is directed to advise the Tribunal of whether or not she continues to seek a determination of any of the requests from this respondent. If the applicant does continue to seek a determination, the applicant is directed to provide any further submissions that she may wish to make in reply to the responses received within 21 days of the date of this Interim Decision, along with how she wishes to have the outstanding issues determined and the reasons in support of her position. The Tribunal may decide any outstanding issues based on the material filed or may issue further directions regarding the same.

37Further, the applicant is directed to advise the Tribunal in writing within 7 days of the date of this Interim Decision as to whether or not she consents to email delivery.