HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Arthur Keith
Applicant
-and-
College of Physicians and Surgeons of Ontario and Her Majesty the Queen in Right of Ontario, as represented by the Minister of Health and Long-Term Care
Respondents
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Keith v. College of Physicians and Surgeons of Ontario
APPEARANCES:
Arthur Keith, Applicant ) Cara Wilkie, Counsel
College of Physicians and Surgeons )
of Ontario, Respondent ) Michelle Gibbs, Counsel
Her Majesty the Queen in Right of Ontario, )
as represented by the Minister of Health ) Matthew Horner, Counsel
and Long-Term Care, Respondent )
ii
1This is an Application filed on December 24, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).
2The applicant, a doctor trained in the United States, alleges that the failure by the College of Physicians and Surgeons of Ontario (the “College”) to individually assess his qualifications as a specialist between 1992 and 2007, and its reliance on specialist certification by the Royal College of Physicians and Surgeons of Canada (the “RCPSC”), amounts to discrimination on the grounds of place of origin and citizenship because it undervalued his American training. The applicant claims that reliance on the RCPSC process is discriminatory because it disadvantages older, foreign-trained physicians. He also alleges that the Ministry of Health and Long-Term Care (the “Ministry”) discriminated against him by using RCPSC certification as a basis for certain grant programs for physicians, up to 2007. As remedy, the applicant seeks monetary compensation to compensate for his inability to establish a specialist private practice between 1994 and 2007, compensation for lost employment opportunities during that period, and compensation for the loss of grant income between 2003 and 2007. He also seeks monetary compensation for injury to his dignity and self-respect.
3The applicant also alleges that after he was recognized as a specialist by the College in 2007 under its new process, the manner in which he is permitted to describe his specialty or in which the College describes his specialty distinguished between himself and RCPSC-certified specialists, and amounts to discrimination on the basis of place of origin, citizenship and age. For this discrimination, the applicant seeks as remedy certain changes to the College’s website and to a Regulation under the Medicine Act, 1991.
4By Interim Decision dated April 14, 2009, 2009 HRTO 436, the Tribunal directed a hearing to receive the submissions of the parties on the respondents’ requests to dismiss the Application without a hearing on the merits. The respondents take the position that, with respect to some allegations, the Application has not been filed in a timely manner and, with respect to other allegations, the Application may not proceed because section 34(11) of the Code applies to the extent there has been a settlement of the issues. For the purposes of the hearing, the parties filed written submissions as well as a joint book of documents.
BACKGROUND
5The applicant is a member of the College and practices medicine in Ontario. He originates in and graduated from medical school in the United States and practiced medicine there before coming to Canada. He was certified as a specialist in Psychiatry by the American Board of Psychiatry and Neurology (“ABPN”) in 1987. He also obtained certification as a sub-specialist in Forensic Psychiatry from the ABPN in 1996.
6The applicant became authorized to practice medicine in Ontario in 1992 and began working in Ontario in 1993.
7The College is the governing body for physicians in Ontario and derives its statutory powers and duties from, among others, the Medicine Act, 1991, the Regulated Health Professions Act, 1991 (the “RHPA”), the Health Professions Procedural Code (“HPPC”), regulations, and the College’s by-laws. The College issues certificates to doctors licensed to practice in Ontario. Where a doctor has qualifications as a specialist, this is noted on the certificates.
8Until 2006, the only pathway to specialist certification in Ontario was through the RCPSC. In order to be recognized as a specialist by the College, a doctor was required to obtain specialist credentials through the RCPSC. The ability to bill the Ontario Health Insurance Plan as a specialist depended on RCPSC certification. Ontario Regulation 114/94, made under the Medicine Act, 1991, was consistent with this policy, prohibiting doctors from describing themselves as specialists unless they were certified by the RCPSC.
9When the applicant obtained his general license to practice medicine in Ontario in 1992, he was not given recognition as a specialist in psychiatry. In July 1996, when the applicant acquired his subspecialty credential in Forensic Psychiatry from the ABPN, he requested that the College recognize this credential, as well as his 1987 ABPN certification in psychiatry, on his College certificates. The response from the College the same month was that the only certifications recognized by the College for the purpose of obtaining a license in Ontario were those granted by the RCPSC and the College of Family Physicians of Canada.
10The RCPSC process of certification includes a written and an oral examination. The applicant states that he has repeatedly and unsuccessfully attempted to gain RCPSC certification, but that the examination requirement disadvantages doctors of foreign origin and advanced age.
11In 1997, as a member of the College Council, the applicant was unsuccessful in having Council adopt a motion supporting a change to the system of specialist recognition, to enable foreign certified specialists to identify themselves as specialists.
12The applicant states that although he was unable to bill OHIP as a psychiatrist, he has found employment throughout the years as a specialist in hospitals in Ontario that recognized his American specialty certification. He states that he left Ontario in 1998 for the United States where he practised his specialty and subspecialty, returning to the province in 2003. He states that the professional disability of practising as a specialist in Ontario without possessing a RCPSC credential was a significant factor in his decision to leave Ontario at that time.
13In 2004, College Council introduced a policy allowing for the recognition of specialists who have received training and certification other than through the RCPSC process. This policy required the development of an implementation plan setting out the application procedure for specialty recognition, criteria, screening and manner of assessments. The implementation plan was completed in 2006 and the College began considering applications for recognition under the new process. The applicant’s application for recognition as a specialist in Psychiatry was granted by the College’s Registration Committee in April 2007.
14The provision of O. Reg 114/94, requiring that specialists be certified by the RCPSC in order to hold themselves out as specialists, was not amended at the same time. As of the time of the hearing in this matter, the College had approved changes to the Regulation and submitted them to the Ministry, but these changes have not yet been promulgated.
15The College maintains a website which lists doctors in the province, along with their specialties. Historically, in keeping with the reliance on RCPSC certification, only specialties based on RCPSC certification were listed. As of the time the applicant received his specialist recognition in April 2007, the website had not been amended to incorporate the alternative process for specialist recognition.
16After receiving his specialist recognition, the applicant made a request on April 20, 2007 for his information to be updated on the College’s website. At the time, his specialties were described on the website as “none.” He repeated this request several times. He was advised by the College on November 2, 2007 that it was working with IT staff to make significant changes to its website, including adding specialist recognition after the College grants such certification. The College’s representative offered to contact anyone the applicant might wish to confirm his specialist status, authorized the applicant to provide her name and email address for the purpose of any such contact, and suggested that the applicant was free to use the letter from the College confirming his speciality certification as he deemed fit.
17The applicant was not satisfied with this response. He retained a lawyer who, on April 4, 2008, sent a letter to the College alleging that the College’s website was defamatory of the applicant. Attached to the letter was a Notice under the Libel and Slander Act. Counsel for the applicant stated that if no change to the website was made within ten days, the College would be served with a Statement of Claim claiming general and aggravated and punitive damages for libel. The applicant’s counsel included a statement from the applicant explaining his position that the College’s website was defamatory, in which he refers to the “professional disability (of not being recognized as a specialist) to which I have been subject for more than fifteen years.”
18On April 16, 2008, the College amended its website to include, as the applicant’s specialty, “Psychiatry,” with the additional information that the specialty was “CPSO recognized.”
19The applicant was not satisfied with the College’s response. In correspondence to the College through his counsel, he took the position that the change to the website “implies a two-tiered specialist system in which specialists with Royal College certification are “real” specialists and specialists merely recognized by the CPSO are lesser, not-as-good, or less-legitimate specialists.” In that correspondence, he referred to a quote from Animal Farm, by George Orwell, that “All animals are equal, but some animals are more equal than others.”
20There was further correspondence between counsel over the next few months. On September 4, 2008, counsel for the College stated that it would prefer to resolve the matter without the need for litigation, and offered to pay $4,000 to the applicant for his legal fees, without admission of liability, and predicated on the execution of a full and final release in a form satisfactory to the College.
21By letter dated September 10, 2008, counsel for the applicant stated that the applicant was willing to accept the proposal. The letter stated:
He does not agree with the College’s position on [the] website. However, he is, as a practical matter, willing to resolve this matter on the terms that you have indicated, with the payment of $4,000.00 towards his legal fees.”
22There was further correspondence about the details of the release, subsequent to which counsel for the applicant confirmed on September 25, 2008 that he had forwarded the release to the applicant for his signature.
23By correspondence dated December 15, 2008, counsel for the applicant informed the College of substantial changes that the applicant wished to make to the release. Specifically, the applicant wished the College to admit fault in writing, and to remove the confidentiality clause.
24This Application was filed on December 24, 2008, and was sent to the College by the Tribunal on January 21, 2009. On January 23, 2009, counsel for the College responded to the applicant’s correspondence of December 15, stating the College’s position that the parties had reached a binding settlement of the matter in September. Counsel indicated that she was aware of the Application, and would be seeking a dismissal based on the settlement.
SUBMISSIONS OF THE PARTIES
25On the issue of whether section 34(11) applies, the applicant denies that there has been a settlement of his civil claim, or that a civil proceeding was initiated. In any event, the applicant takes the position that if there is a settlement, it relates only to a defamation claim and not to the applicant’s rights under the Code.
26On the timeliness issue, counsel for the applicant submitted that, in addition to the initial denial of the applicant’s specialist credentials, this case is about the failure of the College to develop a non-discriminatory manner of assessing specialist credentials between 1992 and 2007. Because the case is about the failure to do something, there is no one incident of discrimination that can be pointed to. This discrimination continued until it was remedied in 2007. Further, the prohibition in the Regulation, as well as the discriminatory description of the applicant’s credentials on the College website, continues to this day.
27All aspects of the discrimination against the applicant constitute part of a series of incidents. They are different aspects of the manner in which the respondents have demeaned the applicant’s qualifications over the years.
28Further, in the applicant’s submissions, where there is a continuing contravention of the Code, it is unnecessary to consider whether the circumstances fall within a “series of incidents.” In effect, the applicant argues that where there is a continuing contravention of the Code, it constitutes one incident.
29In the applicant’s submission therefore, the events between 1992 and 2007 are one incident of discrimination which continued over those years, and forms part of a series of incidents with the continuing prohibition in the Regulation and the description of the applicant on the College website. The applicant submitted that the facts are before the Tribunal to establish that the events in the Application are a series of incidents within the meaning of section 34(1). Alternatively, the Tribunal should hear evidence to establish whether the events are part of a general culture within the College which demeans or diminishes foreign-trained physicians, in order to determine whether the incidents are tied together or separate. Whether or not the incidents are part of a series of incidents is a determination that should be made after a full hearing on the merits of the Application.
30I queried applicant’s counsel about whether the effect of her submissions would undermine the policy expressed in the Code that human rights complaints be raised promptly. Among other things, counsel suggested that this policy objective could be served through a remedial order that did not grant a remedy for a period of time when the applicant could have brought this Application forward and did not. However, counsel also submitted that it would not be appropriate for the Tribunal to limit damages at this stage as part of a decision on the preliminary issues; whether damages should be limited should be determined after a hearing on the merits.
31Counsel for the College submitted in response to this suggestion that the issue of delay is a jurisdictional one, and should not be treated as a question of remedy. Further, it is also a matter of fairness, and no respondent should have to wait until the conclusion of the hearing to know whether it will face liability for events that happened many years ago. With respect to the argument that the Application is about a continuing contravention of the Code, counsel submits that the issue is whether the policy is discriminatory, not the failure to change it. The times when the policy was applied to the applicant are the potential “incidents” of discrimination.
32Counsel for the College disagreed with the submission that a hearing on the merits of the Application is required in order to dispose of the request to dismiss for delay. The parties have filed a joint book of documents which is sufficient evidence to support a decision on this issue. The Tribunal can look at the allegations and decide whether they constitute a series of incidents. The applicant should not be able to make the mere assertion that they do, and require the Tribunal and the respondents to undergo a lengthy hearing before that issue is determined.
33On the issue of whether section 34(11) applies, counsel referred me to decisions of the courts finding parties bound to settlements even in the absence of full documentation.
34Counsel for the Ministry submitted that it cannot be intended by section 34(1) that applications be immunized from the timeliness requirements by characterizing the discrimination as an ongoing failure to take action. He also submitted that incidents of a different character cannot be said to constitute a series of incidents simply on an assertion that they are part of a culture of discrimination.
DELAY
35Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:
34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
36Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.
37In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal stated that the mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. The Code requires an individual to act with all due diligence, and file their application within one year when they seek to pursue a human rights claim.
38In this case, the applicant seeks a remedy for discrimination against him that, even in his own characterization, began in 1992. He argues that he may bring such a claim because the events that began in 1992 are part of a series of incidents with other incidents that occurred within a year of the Application.
39I do not accept the applicant’s submission that the Tribunal cannot make a determination, as a preliminary issue, whether the Application involves a series of incidents. The Tribunal has the discretion to decide in what order issues will be considered and although in some cases, the Tribunal may prefer to hear evidence before determining whether section 34(1)(b) applies, in other cases, this is a determination it can make on the basis of written materials and/or the parties oral submissions. In this case, I am satisfied this is a question that can be determined on the basis of the material and submissions before me.
40Although the applicant suggests that the events are linked in that they reflect a general culture or attitude towards foreign-trained physicians within the College, there are no facts alleged which support this bald assertion beyond the events themselves. Beyond the broad suggestion that the Tribunal needs to hear evidence, the applicant did not point the Tribunal to any additional facts on which the Tribunal would be required to hear oral evidence, relating to the question of whether the events are a “series of incidents.”
41I thus turn to consider the applicant’s allegations. Based on the amended Application, the events or actions which are said to violate the Code are:
The failure by the College to provide the applicant with an opportunity to have his qualifications as a specialist individually assessed, between 1992 and 2007;
The reliance by the Ministry on the CPSO’s discriminatory recognition of specializations, up to 2007;
The prohibition in Regulation 114/94 made under the Medicine Act, 1991 preventing the applicant from identifying himself as a specialist, following recognition of his specialty in 2007 and continuing to the present;
The description of the applicant’s specialty as “none” following the College’s recognition of his specialty in 2007, until April 2008;
The description of College members certified by the RCPSC as “Permanent” following the College’s recognition of the applicant’s specialty in 2007, until February 2009;
The description of the applicant’s specialty as “CPSO Recognized” between April 16, 2008 and February 16, 2009;
The description of the applicant’s specialty as “CPSO Recognized Specialist” from February 16, 2009 to date.
42The Tribunal’s approach to what is a “series of incidents” is developing on a case-by-case basis. It has been said that events are not part of a series of incidents if there is a break in the temporal connection between them. Thus, a gap of more than one year between events would, in most cases, interrupt the series: Savage v. Toronto Transit Commission 2010 HRTO 1360. The Tribunal has considered the nature of the events and whether they may reasonably be viewed as a pattern of conduct, or are comprised of incidents relating to discrete and separate issues without some connection or nexus: Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695, Baisa v. Skills for Change, 2010 HRTO 1621. Further, it has stated that the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination or a series of incidents: Mafinezam v. University of Toronto, 2010 HRTO 1495.
43After considering the developing principles in this area, I find that the allegations about events pre-dating 2007 are not part of a series of incidents with those that follow the recognition of the applicant’s specialty in 2007. The applicant characterizes the discrimination before 2007 as the denial of the opportunity to have his qualifications, experience, skills and certifications individually assessed. It is said that the College’s exclusive reliance on the RCPSC process, without supplementation by a process that recognized foreign credentials, discriminated against him from 1992 to 2007. It is also said that the Ministry’s reliance in turn on the College’s recognition criteria in the administration of grant programs, discriminated against him.
44It is important to note that both of these alleged discriminatory policies ended either in 2006, when the College implemented a process for granting recognition to foreign-trained specialists or at the latest 2007, when the College granted the applicant’s request for recognition. I am satisfied that these allegations are different in nature from the allegations about the treatment of the applicant once his specialty was recognized. The allegations about events following 2007 are about the manner in which the applicant was described, or could describe his own credentials, after his foreign training was given recognition. The assertion that the College’s description of his credentials on the website is discriminatory is based on a distinction in treatment between the applicant, as a specialist recognized through the College process, and a specialist recognized through the RCPSC process.
45The applicant’s assertions that the events are linked by a common culture within the College are not enough to establish that they are a series of incidents. There is nothing about the events themselves which suggests they are part of a pattern of conduct. This is not a case where it is necessary for the Tribunal to inquire into the allegations of discrimination which are otherwise untimely, in order to fully understand the nature of the applicant’s claims of discrimination. This is also not a case where it can be said that the subsequent and timely acts of alleged discrimination shed new light on previous actions that were not seen as discriminatory at the time.
46The applicant believed throughout this period that the system for recognition of specialists in Ontario was unfair. He made efforts to have the College change it. He left Ontario for a period of time partly as a result of what he believed to be unfair treatment. In this case, there is absolutely no reason why this applicant could not have made a complaint about the alleged discrimination against him as early as 1992, when the College granted him a license without providing a process for assessing his foreign specialist credentials, in 1996, when it refused his request for recognition based on his American credentials or in 1997, when it decided against the applicant’s motion to change the Regulation.
47It is possible to view the incidents of alleged discrimination before 2007 as consisting of the above-described decisions by the College, in which case the allegations about them are between 12 and 16 years late. But even if I accept the applicant’s contention that the pre-2007 discriminatory treatment of him was one continuing incident of discrimination which only ended in 2007, I do not accept that it was part of a series of incidents with the events from 2007 to the present.
48In arriving at this result, I have considered the policy objective referred to in Miller, above, that human rights claims be raised and dealt with expeditiously. The mandatory one-year time limit for filing applications under the Code means that an applicant may not, without good reason, delay in seeking a remedy for alleged discrimination. Section 34(1)(b), on the other hand, allows an applicant to pursue allegations of discrimination that might otherwise be barred by the one-year time limit. In enacting section 34(1)(b), the legislature has recognized that discrimination may sometimes occur as a pattern of conduct that must be considered together as a whole in order to fully understand its nature and effects and provide an adequate remedy. Alternatively, it may be that discriminatory aspects of conduct only become apparent once it is repeated over time. But whatever the case, there must be something about the alleged discriminatory events that makes it just and appropriate for the Tribunal to view them as a series of incidents, with the result of hearing allegations about events that otherwise fall beyond the Code’s time limit.
49I therefore find that the allegations relating to pre-2007 conduct or policies are untimely. As the applicant has not provided an explanation for why he could not have made an application about this alleged discrimination in a timely manner, he cannot proceed with this part of the Application.
50I do find, however, that the post-2007 policies and practices, including the regulatory prohibition, are part of a series of incidents that relate to the issue of how the applicant’s credentials are described to the public once he was granted College recognition of his specialty. To the extent that the applicant alleges that the continuing regulatory prohibition and the different ways his credentials have been described on the College’s website since April 2007 are discriminatory, this part of the Application is not untimely.
SECTION 34(11)
51Section 34(11) of the Code provides:
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.
52In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at para. 10, the Tribunal explained the significance of section 34(11):
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.
53On the facts of this case, it is not apparent that section 34(11) bars this Application. Although the applicant issued a Notice under the Libel and Slander Act in which he notified the respondent of his intent to start an action, he has not issued a Statement of Claim. I am unable to conclude that he has commenced a “civil proceeding in a court” within the meaning of section 34(11). As the purpose of section 34(11) is to prevent duplicative court and Tribunal proceedings about human rights claims, and there is no court proceeding about the matters in this Application, section 34(11) does not apply.
54In any event, as a settlement of a defamation claim, and in the absence of any pleadings or other evidence that demonstrates that through the defamation claim the applicant intended to seek a remedy for an infringement of his rights under the Code, I would not have found 34(11)(b) applicable. The College may be right that the applicant has settled his claim under the Libel and Slander Act, but he is not precluded from pursuing his claim under the Code.
55I invited counsel in their submissions to address whether the circumstances here could also raise an issue of abuse of process, in relation to the matters covered by the purported settlement. Although the matter is not without doubt, after considering the issue, I do not exercise my discretion to dismiss part of the Application at the outset as an abuse of process. Given the disputed settlement, the absence of clarity about the scope of issues ostensibly settled and the ambiguity about whether either party intended the settlement discussions to include any potential claims under the Code, I am not convinced that the Tribunal should bar these matters from proceeding further on the basis of the purported settlement.
56In sum, the following allegations of discrimination are timely and may proceed:
The prohibition in Regulation 114/94 made under the Medicine Act, 1991 preventing the applicant from identifying himself as a specialist, between 2007 and the present;
The description of the applicant’s specialty as “none” following the College’s recognition of his specialty in 2007, until April 2008;
The description of College members certified by the RCPSC as “Permanent” following the College’s recognition of the applicant’s specialty in 2007, until February 2009;
The description of the applicant’s specialty as “CPSO Recognized” between April 16, 2008 and February 16, 2009;
The description of the applicant’s specialty as “CPSO Recognized Specialist” from February 16, 2009 to date.
57The respondents have consented to mediation; the applicant has not. Unless the applicant advises the Tribunal within two weeks that he wishes to participate in mediation, this matter will be scheduled for hearing.
Dated at Toronto, this 19th day of November, 2010.
“Signed by”
Sherry Liang
Vice-chair