HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dr. Mary Naidu
Applicant
-and-
Whitby Mental Health Centre
and Dr. Peter Prendergast
Respondents
RECONSIDERATION DECISION
Adjudicator: Mark Hart
Indexed as: Naidu v. Whitby Mental Health Centre
1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision dated July 5, 2011 (2011 HRTO 1279), which dismissed this Application.
2On July 28, 2011, the applicant filed a Request for Reconsideration of the Tribunal’s Decision.
3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) provides as follows:
45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008).
5The Tribunal’s Practice Direction on Reconsideration begins with the following statements:
Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.
7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.
8The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 of the Rules provides:
A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:
a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
9As a result, I need to determine whether the material filed by the applicant in support of her request for reconsideration satisfies any of the criteria set out in Rule 25.5. The applicant relies solely upon the criteria identified in Rule 25.5(d).
10The applicant first states that, in reviewing the evidence, I fragmented the issues and incidents without ever treating them collectively. I disagree. There was a large volume of issues and incidents that I addressed in my Decision in accordance with the manner that they had been articulated by the applicant herself in her statement of additional facts, which was presented by the applicant as the road map to her allegations and evidence. Having reviewed the evidence in relation to the issues as they had been framed by the applicant, I later in my Decision addressed the pattern of differential treatment that she had alleged in her final submissions: see paras. 224 to 236. At the conclusion of my review of the pattern of differential treatment that she alleged, I expressly stated that I had “reviewed and considered the applicant’s allegations and the evidence as a whole” and did not find support for her allegation of discrimination.
11The applicant further states that I applied differing standards to the evidence by accepting the respondents’ evidence without any supporting documentation while dismissing the applicant’s evidence where substantial documentation exists. The only specific example of this is stated to be from paras. 46 to 61 of my Decision. In these paragraphs, I largely review the applicant’s own evidence on this issue, which relates to her allegation about being assigned dangerous patients, and rely upon documentation (where it existed) that largely was prepared by the applicant herself. The only references to the respondents’ evidence in this section are largely supported by the documents. I fail to see that any differing standards were applied to this evidence.
12The applicant states that I identified the fact that credibility played a significant role in weighing and assessing the evidence of the witnesses who gave testimony and in reaching my decision. With respect, that is not what I said in my Decision. To the contrary, at para. 16 of my Decision, I state that many of the relevant material facts were largely not in dispute, and the issues before me largely related to the applicant’s perception or interpretation of the facts and whether inferences of discrimination, harassment or reprisal in violation of the Code were supported by the evidence. As a result, assessment of credibility was not a major determinant in reaching my Decision.
13Particularly with regard to the evidence of Dr. Harrad, the applicant contends that I did not reconcile inconsistencies in Dr. Harrad’s evidence, particularly in relation to his allegation of discrimination shortly prior to his departure from the Hospital. In fact, I explicitly address this evidence at paras. 257 to 260 of my Decision. As I state in my Decision, Dr. Harrad’s evidence was only relevant to the allegation made in the applicant’s complaint that other psychiatrists of Indian origin and ancestry, including Dr. Harrad, experienced adverse treatment from Dr. Prendergast. For the reasons stated in my Decision, this allegation simply was not supported by the evidence before me.
14The applicant also contends that I failed to make reference to “comparable testimony” from Dr. Shammi. Dr. Shammi’s evidence is addressed in my Decision at paras. 252 to 254. His evidence before me was that he did not experience discrimination or harassment because of his Indian ancestry and origin by Dr. Prendergast or anyone else at WMHC. There was no evidence before me to contradict this, nor is any such evidence referenced in the Request for Reconsideration.
15The applicant states that I overlooked the contradictory evidence of witnesses such as Dr. Prendergast, concerning, inter alia, his lack of awareness of the Human Rights Code and its provisions, and their impact on his leadership decisions; and Dr. Fothergill, concerning, inter alia, the issue of other physicians seeing private patients during regular work hours while employed full-time at the Hospital. As stated above, I did not find that assessment of credibility of individual witnesses was particularly significant to the disposition of this matter. In particular, I did not find Dr. Prendergast’s evidence regarding the extent of his awareness of the Code to be particularly germane to the specific issues before me. With regard to the matter of other psychiatrists seeing patients during regular work hours, this issue is addressed at para. 233 of my Decision, where I note that this was not an allegation raised by the applicant in her complaint or in her statement of additional facts and so was not an issue before me.
16The applicant asserts that I failed to reconcile Dr. Fothergill's inability to provide any supporting details for any of her evidence, yet accepted and relied upon her unsupported evidence. This is a very broad assertion with no specific example provided. There certainly were instances where Dr. Fothergill’s evidence before me was supported by documents in evidence before me, for example the allegation arising out of the applicant’s medical issues (see paras. 22 to 34), the allegation about the attendance management program (see paras. 41 to 45) and the allegations regarding crisis coverage (see paras. 93 to 115) among others.
17The applicant contends that I reconciled or decided all instances of conflict in the evidence against her without proper analysis or explanation. The only specific instance of this which is cited in the Request for Reconsideration relates to para. 148 of my Decision, and the statement I made that "it is my view that the applicant's comments about Ms. Powers were unduly negative, intemperate and unfair". With respect, this is not an issue of any conflict in the evidence. Rather, it is an expression of my view of the comments made by the applicant about Ms. Powers, and how these contributed to the conflict between them.
18The applicant contends that in my analysis I failed to properly take into account clear inconsistencies in the evidence. The only specific example cited relates to para. 129 of my Decision. There is no doubt that there was a conflict in the evidence as between Ms. Powers and Ms. Canuel as referenced in this paragraph. However, in my view, it was not necessary for me to resolve this conflict in order to determine the issue before me, which is whether the evidence supported that the applicant experienced racial discrimination. In any proceeding, and particularly in this one where there were a large number of allegations extending over a considerable period of time, there are bound to be conflicts in the evidence. However, it is not necessary for an adjudicator to resolve each and every conflict in the evidence. It is only necessary to resolve conflicts that are germane to the issues that need to be determined. In my view, whether or not Ms. Powers met with Ms. Canuel following the incident where her comments were recorded on the applicant’s voicemail was not germane to my determination as to whether the applicant experienced racial discrimination.
19It is stated that in reaching my decision, I failed to reconcile the issue of the differential treatment of the applicant. The first example provided by the applicant relates to the issue of psychiatrists conducting private practices while full-time employees of the Hospital. As already indicated above and as stated in my Decision, this was not raised as an issue before me either in the complaint or in the statement of additional facts, which formed the basis of the applicant’s allegations in this proceeding and the notice given to the respondents of her allegations. I appreciate the applicant’s contention that this practice contributed to the issues relating to crisis coverage scheduling. However, the specific issues of crisis coverage scheduling which were raised by the applicant and her allegation of differential treatment were addressed exhaustively in my Decision (see paras. 93 to 115 and again at para. 226).
20The other allegations of differential treatment that the applicant states were not addressed in my Decision were similarly addressed in an exhaustive fashion based on the evidence before me: the allegations raised by her regarding patient-splitting were addressed at paras. 66 to 76; the allegations regarding double booking were addressed as part of the issues relating to crisis coverage scheduling; and the allegations relating to the assignment of a particular social worker to the applicant were addressed at paras. 159 to 167 and again at para. 228. As already indicated above, the applicant’s allegations of differential treatment were expressly addressed by me at paras. 224 to 236 of my Decision. With regard to the issue of the social worker, the applicant asserts that I found that this social worker was “rotated” among the psychiatrists. That was not my finding nor was that the evidence before me. Rather, Ms. Canuel’s evidence was that there was an attempt to even out the distribution of workload as between the social workers, with the result that the social worker in question (who had a lighter workload) was being assigned to newly assigned patients in order to try to equalize the workload (see para. 165), but that this was happening for all of the psychiatrists including the applicant.
21The applicant asserts that I misunderstood and misapplied the term "patient splitting". As noted in my Decision at paras. 66 to 76, the issue of “patient splitting” was raised only briefly in the applicant’s allegations as set out in her statement of additional facts. The statement of additional facts was used as a road map to take me through the applicant’s evidence regarding the allegations she raised, and in my Decision I addressed the specific allegations that were raised at this point in her evidence-in-chief. Regardless of whether the specific allegation addressed in this section of my Decision is properly characterized under the heading “patient splitting” or under the heading “co-treatment” as stated by the applicant in her Request for Reconsideration, this does not change my analysis of the evidence relating to this issue or my conclusion that this incident does not provide support for the applicant’s allegations of racial discrimination.
22The applicant contends that I failed to address the issue that on multiple occasions, she was assigned patients who were also surreptitiously assigned to and being treated by other staff psychiatrists in their private practices. No such issue was raised before me. In particular, the applicant makes reference in her Request for Reconsideration to a female patient who did not want to be seen by a male psychiatrist and was angry at the applicant when she was assigned to a male psychiatrist without the applicant’s knowledge. No identifier is provided in the Request for Reconsideration to indicate who this patient was or what if any documentation was in evidence before me regarding this allegation. No such allegation is raised in the applicant’s complaint or statement of additional facts, nor did the applicant provide any evidence to me at the hearing regarding this particular patient.
23The applicant states that, while I was correct that "double booking" also on more limited occasions affected other psychiatrists, I failed to address in my Decision the fact that in all of those other instances the issue was immediately corrected and did not re-occur. Whether or not this is a “fact”, there was no such evidence before me. As already indicated above, I dealt exhaustively with the issue of crisis coverage scheduling in my Decision and found that the evidence did not support the conclusion that the respondent Hospital was indifferent to the applicant’s concerns about crisis scheduling for the reasons expressed at para. 115 of my Decision.
24The applicant states that I ignored Ms. Canuel’s acknowledgement that it was not appropriate to schedule the applicant for crisis coverage when she also was scheduled to work at the clinic. While there was evidence before me that at one point Dr. Fothergill wanted the applicant to start taking some out-patient appointments during the times she was assigned crisis duty (see para. 104), the evidence did not support that the applicant was deliberately “double-booked” for crisis duty and clinic time and the evidence indicates that when such issues arose, they were addressed by the Hospital. While the respondents’ witnesses may have had differences of opinion regarding whether such “double-booking” was workable or appropriate, in my view this was not germane to the allegation raised by the applicant that she was deliberately double-booked or that management failed to address her concerns in this regard when raised.
25The applicant states that I failed to address the issue of the applicant being required to provide coverage for other psychiatrists when they were absent. In fact, I did address any specific incidents of this that were presented to me by the applicant in her evidence (see paras. 95 to 101).
26The applicant contends that I failed to address her allegation that she was repeatedly re-assigned patients who had made threats against her life. In fact, I address this specific allegation extensively at paras. 46 to 61 of my Decision. At para. 57 of my Decision, I expressly reference this allegation and find that it was not borne out by the evidence before me for the reasons I express. With regard to patient K.P., I did not intend to be callous or to suggest that the problem was solved when this patient committed suicide. Rather, my point is that I had limited evidence from the applicant about this patient and no supporting documentation. Based on the evidence given by the applicant before me, the danger to her was evidenced by this patient stalking her for a few days prior to committing suicide. I had no evidence before me as to any safety threat this patient may have posed prior to this stalking, or that this patient was deliberately re-assigned to the applicant with knowledge of a specific safety threat.
27The applicant states that I wrongly interpreted the evidence regarding the Grand Rounds issue and failed to adequately appreciate that anyone is free to attend Grand Rounds. It was not disputed before me that in normal circumstances, any physician is free to attend Grand Rounds. However, the issue before me was whether the response to the applicant’s attendance at Grand Rounds on December 1, 2006 amounted to reprisal in violation of the Code. As stated in my Decision, establishing reprisal requires proof of intent. In order to ascertain whether the requisite intent to reprise existed, I needed to consider all of the surrounding circumstances leading to the respondents’ response, including the fact that at the time the parties were in settlement negotiations. It is in this context that I made my finding that reprisal was not established.
28While the applicant states in her Request for Reconsideration that I used this issue against her, no specific basis is provided for this allegation nor do I find such an allegation supported based on my Decision. She also states that I did not properly address respondent counsel’s use of the word “surreptitious” in correspondence to applicant’s then counsel. In fact, I addressed this matter expressly at para. 300 of my Decision.
29The applicant contends that in my Decision, I confused the Medical Staff Association (MSA) with the Medical Advisory Committee (MAC) and specifically references para. 78 of my Decision to support this contention. In fact, what I am recording at para. 78 of my Decision is applicant counsel’s own explanation as to why allegations regarding the MSA were relevant to this proceeding. I do not state in this paragraph, nor do I recall applicant counsel suggesting, that the MSA was the venue where one would proceed with a formal grievance alleging discrimination. Rather, I understood applicant counsel to be saying that the respondents had asserted that the MSA was one avenue through which the applicant could have raised concerns about discrimination, and the applicant was providing an explanation for why she had not done so.
30The applicant states that I failed to recall that the MSA was not available to attend with the applicant at her termination meeting or at her prior meeting with Ms. Beecher. In fact, this evidence is cited in my Decision at paras. 271 and 139 respectively.
31The applicant states that I failed to address the fact that the applicant did not have the opportunity to bring her concerns to the Senior Program Psychiatrist following Dr. Tamakloe’s departure as of March 27, 2006. The matter of the Senior Program Psychiatrist is addressed at paras. 153 to 158 of my Decision. Whether or not the applicant had an opportunity to raise concerns with the Senior Program Psychiatrist was not germane to any issue before me. One of the issues I addressed in this proceeding on the basis of the allegations raised by the applicant before me was the issue of whether the applicant had raised her allegations of discrimination or harassment under the Code in a manner that triggered the respondents’ obligation to take reasonable steps to respond (see paras. 176 to 203). As indicated in this section of my Decision, the resolution of this issue turns on whether a Code-related concern was communicated by the applicant or otherwise known to the respondents in a manner sufficient to engage the obligation to take reasonable steps to respond. The fact that the applicant did not have an opportunity to raise a Code-related issue with a Senior Program Psychiatrist following Dr. Tamakloe’s departure does not engage this or any other issue before me.
32The applicant asserts that I selectively addressed only parts of the relevant evidence, ignoring those portions which assisted the applicant's case. The only specific example of this that was provided by the applicant relates to the issue of the applicant’s medical absence in 2003 and my failure to refer to a letter dated November 18, 2003 from Dr. Fothergill. The point being made, as I understand it, is that Dr. Fothergill had by this time received a letter from the applicant’s family doctor dated October 30, 2003 stating that the applicant’s psychiatrist had advised her not to have any contact with the Hospital. Dr. Fothergill’s letter of November 18, 2003 follows Dr. Fothergill’s previous letter of November 10, 2003, in which she expressly responds to the family doctor’s letter of October 30, 2003. The November 10, 2003 letter notes that the advice not to have contact with the Hospital came from the applicant’s psychiatrist, and confirmation was requested from this psychiatrist that she had given this direction and the rationale from a medical standpoint. The November 18, 2003 letter was in follow-up and was provided to the applicant at a meeting attended by her and her AOPDPS representative on that day. As recorded at para. 27 of my Decision, the matter of the psychiatrist’s letter was discussed at the November 18, 2003 meeting, there was a dispute over the consent form which was subsequently resolved, the psychiatrist provided the requested letter on December 9, 2003, and the applicant’s sick pay was reinstated. In my view, nothing in particular turns on the November 10 or 18, 2003 letters from Dr. Fothergill, which were effectively subsumed in the discussion at the November 18, 2003 meeting.
33The applicant alleges for the first time in her Request for Reconsideration that I demonstrated bias by interfering with the cross-examination of various respondent witnesses. The applicant’s concerns about my alleged interference in cross-examination were addressed at length in my Decision at paras. 302 to 309, though no issue of bias had been raised at that time. In my view, there is nothing about the manner in which I intervened during cross-examination that would support a reasonable apprehension of bias.
34At the conclusion of her Request for Reconsideration, the applicant raises what are framed as “ancillary matters”. It is unclear whether these are intended to be taken into account by me in addressing the reconsideration request. In any event, virtually all of these matters relate to the Commission rather than to the Tribunal. It is not within my jurisdiction to address the Commission’s conduct, except to the extent that there may be an impact on the hearing process before the Tribunal. No such issue was raised before me at the hearing of this matter, nor do I see any such issue arising from the matters set out in the applicant’s Request for Reconsideration.
35Having considered all of the matters raised by the applicant in her Request for Reconsideration, I see nothing that would outweigh the public interest in the finality of Tribunal decisions.
36For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.
Dated at Toronto, this 14th day of November, 2011.
“Signed by”
Mark Hart
Vice-chair