Liam Bruce v. Fernando Teixeira and St. Michael’s Hospital, 2011 HRTO 37

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Liam Bruce

Applicant

-and-

Fernando Teixeira and St. Michael’s Hospital

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 5, 2011

Citation: 2011 HRTO 37

Indexed as: Bruce v. Teixeira

1This Interim Decision deals with the applicant’s Request for Order to add an additional respondent to his Application. The applicant filed his Application on February 22, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of services. His Application concerns the medical treatment he received at St. Michael’s Hospital (“St. Michael’s”) by the individual respondent, and the alleged failure of St. Michael’s to follow-up on his concerns

2On August 31, 2010, the applicant brought a Request for Order During Proceedings (Form 10) asking to amend his Application to add St. Michael’s as a respondent. The applicant, who was unrepresented at the time he filed his Application, states that the failure to name St. Michael’s was inadvertent.

3Dr. Teixeira has filed a Response to the Request for Order consenting to the proposed addition of St. Michael’s as a respondent. St. Michael’s has filed a Response opposing the request to add it on the basis that it is not liable for the actions of Dr. Teixeira and on the basis of prejudice.

4Section 46.3 of the Code states, in part:

For the purposes of this Act, … any act or thing done or omitted to be done in the course of his or employment by an officer, official, employee or agent of a corporation … shall be deemed to be act or thing done or omitted to be done by the corporation …

5St. Michael’s states that Dr. Teixeira is an independent contractor with the hospital and, therefore, not an employee of the hospital. It does not deny that Dr. Teixeira might be an agent of the hospital. Indeed, as pointed out in the applicant’s submissions, Dr. Teixeira was required by the hospital to sign a declaration in which he agrees to abide by St. Michael’s policies, procedures, rules and regulations as part of the appointment and re-appointment process.

6Moreover, when the applicant initially responded to what he believed to be the discriminatory conduct of Dr. Teixeira, he was advised to approach the Patient Affairs Advocate with St. Michael’s. This person did not apparently deny any jurisdiction over his complaint, but instead conducted a preliminary investigation into the applicant’s allegations. It would, thus, appear that St. Michael’s has the authority to address matters of problematic conduct on the part of its physicians, even where they might be deemed to be “independent contractors.”

7The applicant is alleging that St. Michael’s failed to adequately act in response to his complaint, and this could result in an independent finding against St. Michael’s. Obviously at this stage it is not possible to determine whether St. Michael’s did or did not react in an appropriate manner, but such a finding is not necessary to meet the relatively low threshold test for adding a respondent.

8St. Michael’s also asserts that it would be prejudiced by being added, given that it was only given notice of the Application 16 months after the events that gave rise to it. However, other than pointing to theoretical difficulties, it does not point to specific evidence of prejudice. In addition, I would note that it was given contemporaneous notice of the allegations when the applicant filed his complaint with the Patient Affairs Advocate. This is not a final determination of the issue of prejudice, and St. Michael’s may wish to raise this issue again before the vice-chair or member assigned to hear this matter.

9Based on the applicant’s submissions, it would appear that the proposed respondent is a necessary party to this proceeding. Accordingly, I order that St. Michael’s Hospital be added as a respondent to this Application and the style of cause be amended to reflect this addition.

10St. Michael’s is directed to file a Response to the Application (in Form 2) not later than 35 days after a copy of this Interim Decision is sent to it.

11I am not seized of this matter.