Lafontaine v. Thunder Bay Regional Health Sciences Centre, 2010 HRTO 308

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Isabelle Lafontaine

Applicant

-and-

Thunder Bay Regional Health Sciences Centre, David Webster, Christopher O’Brien, Al Driedger and Michael Power

Respondents

INTERIM DECISION

Adjudicator: Caroline Rowan

Date: February 10, 2010

Citation: 2010 HRTO 308

Indexed as: Lafontaine v. Thunder Bay Regional Health Sciences Centre

1This is an Application filed on June 29, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision concerns the following three preliminary issues raised by the responding parties in their response to the Application:

1. Should the Application be dismissed on the ground that the applicant did not file her Application with the Tribunal under section 53(5) until after June 30, 2009?

2. Should the Tribunal dismiss the Application pursuant to section 45.1 of the Code on the ground that the subject-matter has been appropriately dealt with by the hearing and appeal process available under the Public Hospitals Act for matters of physician privileges?

3. If the Application is not dismissed outright, should the Tribunal defer the Application until the conclusion of the applicant’s civil proceeding against all of the respondents (with the exception of Albert Driedger) in respect of events which occurred during and after her tenure at the Hospital?

3In their submissions filed with the Tribunal, the respondents request the opportunity to make oral submissions in support of the preliminary issues raised in their Response. They note that they make that request given the scope of the issues raised by the preliminary matters and because of their view that it would be beneficial to have the breadth and depth of an oral hearing to more fully explore these issues. The applicant did not raise any objection in her submissions to that proposed procedure for addressing the preliminary issues.

4It is useful to outline briefly the factual background to these requests.

5The applicant filed a complaint against the respondents with the Ontario Human Rights Commission on June 14, 2006. In her complaint, she alleges that her right to equal treatment with respect to employment and her right to contract on equal terms without discrimination because of age, sex, place of origin and family status had been violated.

6At the time the applicant filed her complaint, she was a 36 year old female doctor from Quebec, who had been successfully recruited to work at the Thunder Bay Regional Health Sciences (the “Hospital”). She started work on September 27, 2004. At that time, she was pregnant with her third child. The applicant worked at the Hospital until in or about the summer of 2005. She formally resigned from the medical staff at the Hospital in October 2005 by written letter of resignation. She however later applied for the reappointment of privileges in January 2006, but her application was denied.

7The applicant’s discrimination complaint relates to her treatment by the respondents during the time she was working at the Hospital from September 27, 2004 to in or about the summer of 2005 and includes the respondents’ conduct during the course of an external review of the nuclear medicine service at the Hospital. Her complaint also relates to the subsequent decision of the Medical Advisory Committee to recommend against her application for reappointment of privileges at the Hospital.

8Pursuant to subsection 53(5) of the Code, the applicant made an Application to the Tribunal with respect to the subject-matter of this complaint against the respondents.

9In my view, the first preliminary issue referred to above may be disposed of without an oral hearing. In that respect, I note that the respondents’ contention that the Application should be dismissed because the applicant did not make her Application to the Tribunal by June 30, 2009 is a straightforward issue. It can readily be disposed of on the basis of the parties’ written submissions and the material contained within the Tribunal’s file.

10In support of this request for dismissal, the respondents refer to their communications with Tribunal staff in late July 2009 indicating that there was no record of an application having been filed with the Tribunal by the applicant. The respondents however also note that the Tribunal’s letter dated December 9, 2009 contains a statement to the effect that the Application was “received and perfected” on June 30, 2009. The respondents therefore request that the Application be dismissed to the extent that that is not, in fact, the case.

11A review of the Tribunal’s records indicates that the present Application was filed with the Tribunal by electronic mail at 12:01 p.m. on June 30, 2009. In the circumstances, the respondents request that the Application be dismissed on the ground that it is barred pursuant to subsection 53(8) of the Code is denied.

12With respect to the remaining preliminary issues, the Tribunal accepts the respondents’ suggestion that their request that the Application either be dismissed pursuant to section 45.1 of the Code, or deferred pending the applicant’s court action, be addressed by the Tribunal following an oral hearing. The Tribunal also agrees with the respondents’ submission that that oral hearing should be deferred until the release of the decision of the Health Professions Appeal and Review Board (the “HPARB”) concerning the decision to deny the applicant’s application for privileges. In this regard, we note that the proceedings to which the respondents refer in support of their contention that the Application should be dismissed pursuant to section 45.1 of the Code are the statutory processes established under the Public Hospitals Act for the hearing and resolution of physician privilege matters.

13In the present case, the applicant requested and was granted a hearing before the Hospital Board concerning the decision to deny her application for a reappointment of privileges at the Hospital. The applicant then appealed the decision of the Hospital Board to the HPARB. The applicant, in her submissions, acknowledges that there is an overlap in the issues raised in the Application and those raised in the appeal before the HPARB, but notes that the denial of privileges within nuclear medicine at the Hospital forms only one aspect of her claim of discrimination.

14It appears to the Tribunal from a review of the pleadings and the submissions filed by the parties that there is also an overlap between the facts relevant to the refusal to accept the applicant’s reapplication for privileges at the Hospital and the facts relevant to the present complaint. Both center on the events which occurred during the applicant’s relatively brief tenure at the Hospital from September 2004 until her formal resignation in October 2005.

15The appeal hearing before the HPARB proceeded on June 24-26, July 6-10, July 21, October 13-15 and on October 21, 2009. All of the respondents testified at the hearing before the HPARB. The parties are currently awaiting the HPARB’s decision. In all the circumstances, the Tribunal finds it appropriate to defer consideration of the respondents’ remaining preliminary issues until the HPARB’s decision has been released and to consider those issues at an oral hearing to be held thereafter.

ORDER

16Upon the request of any of the parties and upon receipt by the Tribunal of a copy of the HPARB’s decision referred to herein, the Registrar-Transition is directed to schedule this Application for a single day of hearing to address the remaining preliminary issues raised in the Response.