Christianson v. College of Physicians and Surgeons of Ontario, 2010 HRTO 72

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Christianson

Applicant

-and-

The College of Physicians and Surgeons of Ontario

and Carol Leet

Respondents

DECISION

Adjudicator: Faisal Bhabha

Date: January 14, 2010

Citation: 2010 HRTO 72

Indexed as: Christianson v. College of Physicians and Surgeons of Ontario

INTRODUCTION

1This is an Application filed August 27, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in the area of goods, services and facilities on the basis of disability. The allegations stem from three complaints filed with the Complaints Committee of the corporate respondent, of which the personal respondent was co-chair, and relate to two Ontario physicians who are not named as respondents in this proceeding.

2The applicant requests that I be removed from hearing this Application and from future involvement in any of the applicant's matters before the Tribunal. There is no basis for granting the applicant's request and it is denied.

3This Interim Decision addresses a request by the respondents to dismiss the Application pursuant to section 45.1 of the Code.

BACKGROUND TO CPSO COMPLAINTS AND HPARB DECISIONS

4Legislation establishes a comprehensive statutory scheme for adjudicating complaints arising from the relationship between patients and physicians in Ontario. Pursuant to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended ("RHPA"), Complaints Committees are established to receive and investigate complaints related to each of the Province's self-governing health professions, including the medical profession through the corporate respondent, the College of Physicians and Surgeons of Ontario ("CPSO").

5The RHPA also establishes the Health Professions Appeal and Review Board ("HPARB") as an adjudicative body with statutory powers of review and appeal. One of the HPARB's powers is to review decisions of the various health professions' Complaints Committees. The scope of this function is set out in the Health Professions Procedural Code ("Procedural Code"), which is schedule 2 to the RHPA, and in the HPARB's Rules of Practice. After a complaint review, the HPARB may confirm all or part of the Complaints Committee's decision; make recommendations; or require the Complaints Committee to take remedial action, within its jurisdictional mandate. The HPARB may also decide to take no further action.

6Two complaints by the applicant, dated November 2005 and November 2007, were investigated and dealt with in decisions of the CPSO's Complaints Committee dated March 2007 and May 2008, respectively. The applicant alleged a number of flaws in the Complaints Committee's decisions, and filed an appeal to the HPARB. The applicant alleged that the Complaints Committee erred in its handling of his complaints by:

I. Discriminating against him on the basis of mental disability;

II. Breaching his privacy and other interests by disclosing information about the investigation to the doctors in question; and

III. Failing to appreciate or deal with the seriousness of the alleged "criminal" acts of the doctors in question.

7A hearing into the matter was held in September 2008 at the HPARB, at which the applicant had the opportunity to introduce evidence and make submissions. On March 27, 2009, the HPARB issued its decision upholding the Complaints Committee's decisions. In response to a reconsideration request by the applicant, the HPARB issued a final decision on July 13, 2009, confirming the denial of the applicant's complaints.

8In a third complaint, filed in November 2007, the applicant made additional claims against a physician regarding alleged flaws in diagnosis and medical testing. In March 2008, the Complaints Committee exercised its powers under subsections 26(4) and 26(5) of the Health Professions Procedural Code to take no further action on account of determining that the complaint was "frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process". The applicant was given notice of this decision and had an opportunity to make submissions, of which he did not avail himself.

9The Complaints Committee confirmed its decision in a May 2008 meeting and decided to take no further action. It is clear from the Procedural Code that when the Committee refuses to take further action pursuant to subsection 26(4) and 26(5), it has determined that the complaint is "frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process". The Committee did in fact conclude that the applicant was abusing its process by repeatedly filing complaints related to the applicant's theory that he was misdiagnosed with a psychiatric disorder. The Committee repeatedly found the conduct, diagnoses and decisions of the physicians to be sound, and the applicant's theory that he was a stroke survivor unfounded.

10The applicant sought a review of the May 2008 decision to the HPARB. In April 2009, the HPARB issued a Notice of Intention Not to Proceed with Review. Again, pursuant to the Procedural Code, at section 30(2), the HPARB issues such a Notice only if it considers the case "to have been frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process".

11In an Interim Decision dated April 15, 2009, 2009 HRTO 438, the Tribunal found that the substance of this Application is substantially the same as the applicant's appeals to the HPARB. On that basis, I ordered that the Application be deferred pending the outcome of the HPARB proceedings.

12In an Interim Decision dated October 19, 2009, 2009 HRTO 1703, I ordered the Application re-activated following HPARB decisions that concluded the proceedings in all three of the applicant's original complaints.

PARTIES' SUBMISSIONS ON THE DISMISSAL REQUEST

13The respondents seek an order dismissing the Application on the basis of section 45.1 of the Code. They also argue alternatively that the Tribunal lacks the jurisdiction to enquire into the adjudicative functions of the Complaints Committee of the HPARB, and that the personal respondent, Carol Leet, is protected from Code liability by the doctrine of adjudicative immunity.

14The central argument in support of the respondents' request is that the Application does not raise any issues that were not raised in his complaints to the CPSO, or in the review of the Complaints Committee's decisions by the HPARB.

15The applicant argues that the substance of his Application has not been appropriately dealt with by the HPARB. He cites the statutory limits to the HPARB's powers, namely that it does not have the jurisdiction to award monetary compensation against the College. He further argues that the Tribunal is the correct venue to hear his complaints and that its jurisdiction over the matter is confirmed in its jurisprudence.

DECISION

16Section 45.1 provides as follows:

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.

17Dismissal under section 45.1 is a discretionary remedy. In deciding whether to exercise my discretionary powers, it is worth noting some foundational principles. The Code is an important public policy statute, protecting rights which are quasi-constitutional in nature. Those rights would be meaningless without access to a mechanism for their enforcement. At the same time, responsibility for the administration of justice and the enforcement of legal rights in Ontario is spread across an array of courts and tribunals. There are strong public policy reasons for avoiding duplication in the adjudication of cases raising substantially the same issues in multiple forums. In deciding whether to dismiss the applicant's case, I am therefore mindful of the important balancing of interests between ensuring access to justice and avoiding the abuse of the Tribunal's process.

18In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some principles that apply to the interpretation of s. 45.1. They include:

• 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 s. 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.

19The Tribunal has considered the applicability of section 45.1 in two stages. The first step is to enquire whether there has been another "proceeding" within the meaning of the Code. I have no difficulty finding that the reviews and appeals conducted by the HPARB in discharging its statutory function is a "proceeding" for these purposes.

20In order to determine the second question - that is, whether the substance of the Application has been "appropriately dealt with" - I must first determine what the substance of the Application is. The applicant alleges that he was denied the service of a "serious and thorough investigation" of his complaints to the CPSO. Underlying his allegation of denial of service is an allegation that the CPSO discriminatorily upheld the physicians' diagnostic conclusions, i.e., that the applicant suffers from psychiatric illness.

21Additionally, the applicant alleges he was denied the service of a fulsome investigation because the CPSO "ploughed ahead" with its own investigation, thereby prejudicing and contaminating what he alleges should have been a criminal investigation by police.

22The applicant also alleges that the CPSO's practice of investigating any complaint brought to it, and forwarding a copy of the complaint to the named physician, denies the complainant the right to equal treatment and benefit under the law and violates his privacy interests.

23It is not necessary for me to determine whether the applicant has received a just outcome to his complaints. The Tribunal is not an appellate body. The question for me is whether the applicant has already had a meaningful opportunity to be heard in relation to the issues raised in his Application.

24The applicant does not appear to allege that he was denied the opportunity to make arguments about discrimination in the other proceeding. In fact, it is apparent that the applicant did raise the issue of discrimination at the HPARB. The only distinguishing feature the applicant notes is with respect to remedy, arguing that the HPARB does not have the jurisdiction to make an award of monetary compensation.

25I do not find this distinguishing feature to be relevant to my consideration because I am not enquiring into the question whether the applicant has had access to a particular remedy. Remedies are only canvassed once a determination has been made that a right has been breached. It is clear that the question of whether the applicant's rights under the Code were breached were put by him, directly or indirectly, to the HPARB for consideration and a conclusion was reached that no such breaches occurred. The issue of available remedies is therefore irrelevant.

26The applicant has already had the opportunity to make all of the allegations contained in his Application and to have those issues determined by an impartial decision maker in another forum. As a statutory decision-making body, the HPARB is governed by similar standards of administrative justice as the Tribunal. Without deciding whether its findings were correct, I am able to conclude that the applicant was given a full, fair and impartial hearing at the HPARB addressing all of the material issues raised in his Application.

27In view of the foregoing, proceeding with the Application would amount to an abuse of process, meaning that it would "violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice": Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 37.

28I note that, as the Tribunal stated in Campbell, cited above, at para. 38, to call the Application an "abuse of process" is not to conclude that the applicant has acted oppressively or abusively, or that he is driven by malice or bad faith. Rather, "abuse of process is a legal doctrine whose focus is the integrity and coherence of the adjudicative process", not the intentions of the litigants.

29I also note that this conclusion is distinct from a finding that the Tribunal does not have the jurisdiction to proceed with the Application. As stated, there are instances of overlapping jurisdictions, which necessitate careful consideration of the Tribunal's powers and of the applicable legal doctrines.

ORDER

30The Application is dismissed.