Bajouco v. McMaster, 2011 HRTO 569

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Florips Bajouco

Applicant

-and-

Jeffry McMaster and Jason Bacchiochi

Respondents

DECISION

Adjudicator: Ena Chadha

Date: March 22, 2011

Citation: 2011 HRTO 569

Indexed as: Bajouco v. McMaster

APPEARANCES

Florips Bajouco, Applicant ) Self-represented

Jeffry McMaster, Respondent ) Elizabeth K.P. Grace, Counsel

Jason Bacchiochi, Respondent ) Ann Mitchell, Counsel

INTRODUCTION

1The applicant filed an Application with the Tribunal on March 13, 2009, alleging discrimination with respect to employment, membership in a vocational association and services, goods, and facilities on the basis of disability, family status, marital status and record of offences, and reprisal, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant and both respondents testified at a two-day hearing before this Tribunal. The applicant’s employer, Sunnybrook Women’s Health Sciences Centre (“Sunnybrook”), and her union, Ontario Nurses’ Association (“ONA”), were identified as affected parties; however, neither sought to participate in this proceeding.

FACTUAL BACKGROUND

3The applicant was employed as a nurse with Sunnybrook when she suffered a head, neck and upper back injury. The applicant filed a grievance against Sunnybrook alleging that it failed to provide her with appropriate disability accommodation. The applicant was represented by ONA with respect to this grievance. The grievance was set down for arbitration before Arbitrator Kevin Whitaker (the “arbitrator”).

4The parties to the grievance participated in mediation-arbitration with the arbitrator and, in December 2006, the parties agreed to adjourn the grievance so that the applicant could undergo a multi-disciplinary medical assessment. This agreement was incorporated into an order by the arbitrator and, in September 2007, another order requiring the applicant to cooperate with the terms of the agreement was issued.

5The parties to the grievance agreed that the applicant would be assessed by a panel of specialists, including a neurosurgeon, orthopedic surgeon, a psychiatrist and a kinesiologist, all of whom were to produce reports for the employer and the union. The assessors were asked to address seven specific issues relating to the applicant’s disability, functional limitations, ability to work in certain jobs and potential job modifications. The cumulated findings of the specialists’ reports were to be considered as a basis for determining accommodation for the applicant.

6In January 2008, pursuant to the arbitrator’s order, the respondent Dr. Jeffry McMaster (“McMaster”), a psychiatrist, was jointly retained by Sunnybrook and ONA to provide a psychiatric assessment and evaluation of the applicant in relation to her capacity to return to work. As part of this retainer, McMaster was provided with forty documents, the majority of which were the applicant’s medical records, as background information for the purposes of the assessment.

7McMaster met with the applicant on February 25, 2008, for a psychiatric interview that lasted approximately four hours. The applicant provided McMaster with additional background documents. The applicant signed two written consents authorizing McMaster to access personal health information from another psychiatrist and to obtain a criminal record check. After the interview, the applicant subsequently withdrew the two consents and, as a result, McMaster did not pursue the information.

8As part of the psychiatric assessment, McMaster arranged for the applicant to undergo psychological testing by the respondent Dr. Jason Bacchiochi (“Bacchiochi”), a psychologist. Bacchiochi met with the applicant on March 17, 2008, and conducted two clinical structured psychological interviews and required the applicant to complete two self-reporting (written) questionnaires. This psychological assessment process took over seven hours.

9The respondents’ findings were amalgamated into a final 52-page psychiatric assessment report, which reflects the consensus opinions of the respondents. This report was sent by McMaster to Sunnybrook and ONA on May 14, 2008. ONA provided a copy of the report to the applicant. Upon reviewing the report, the applicant contacted both respondents and expressed her anger and upset with the content of the report. In these communications, the applicant advised that she would seek human rights recourse against the respondents for their discriminatory report, in particular the implication that she had psychological problems because she was unwed and childless. Subsequently, ONA withdrew the applicant’s grievance.

10The applicant filed a complaint against McMaster with The College of Physicians and Surgeons of Ontario (“CPSO”) and a complaint against Bacchiochi with The College of Psychologists of Ontario (“CPO”). The parties did not provide any information about the nature or outcome of those complaints to the Tribunal, other than stating that the CPSO declined to consider the complaint and the CPO considered and disposed of the complaint.

PRELIMINARY INTERIM DECISION

11In an Interim Decision, 2009 HRTO 2280, I denied the respondents’ request for early dismissal. I held that the Application alleged three Code-protected social areas (sections 1, 5 and 6) and it was not plain and obvious that the Application was outside the Tribunal’s jurisdiction with respect to all three areas. I concluded that, in order to determine whether the allegations came within the ambit of the Code, the issues required an assessment of the facts and evidence, along with an interpretation of the law regarding the scope of the social areas.

APPLICANT’S ALLEGATIONS

12The applicant asserts a variety of allegations against the respondents, including that the respondents were biased against her and that they ignored and misinterpreted background medical information. The specific allegations which the applicant ties to the Code are as follows:

(i) The respondents’ report discriminatorily concluded that she was mentally disabled, and was not physically disabled, because of her marital status, family status and past criminal charge;

(ii) McMaster posed inappropriate questions with respect to her marital status and family status;

(iii) The respondents breached confidentiality by including information in their report that she had requested be excluded about her mother and sister and her past criminal charge;

(iv) Bacchiochi failed to accommodate her physical disability by providing inadequate seating arrangements for her to complete the written questionnaires; and

(v) The respondents’ report was a form of reprisal against her because of her previous complaints of human rights violations.

In sum, the applicant claims the respondents disregarded her physical disability, incorrectly perceived her to have a mental disability, and subjected her to discriminatory treatment because she is an unmarried, childless, has a past criminal charge and due to her relationships with her mother and sister.

RESPONDENTS’ RESPONSE

13The respondents deny the allegations of discrimination and reprisal. The respondents submit that they undertook an independent medical examination (“IME”), which reflects their objective, professional opinions about the applicant’s ability to return to work and does not include discriminatory considerations of the applicant’s disability, marital status, family status and/or record of offences. The respondents deny that they breached the applicant’s confidentiality and assert that the applicant was informed that the IME involved limited confidentiality requiring disclosure to her employer, union and the arbitrator.

14The respondents refute that they were indifferent to the applicant’s physical impairments. They point out that they diagnosed the applicant with pain and conversion disorders, which are within the category of somatoform disorders, being physical symptoms that are not fully explained by medical conditions. McMaster denies any inappropriate communications. Bacchiochi contends the applicant refused offers of suitable seating arrangements.

15At the hearing, the respondents renewed their request to dismiss on the basis that the applicant’s allegations are not properly connected to any Code-related social areas. The respondents also raised the additional jurisdictional issue that the Application should not proceed because of the doctrine of expert witness immunity. The respondents further argued that the applicant failed to establish a prima facie case of discrimination. The respondents expressly requested that, given the potentially serious implications of the allegations for their respective professional reputations, the Decision not only dispose of preliminary jurisdictional issues, but also specifically address the merits of the allegations.

ISSUES

16This Decision addresses the following issues:

(i) Does the Application raise the Code-protected social areas of employment, membership in a vocational association, and services, goods, and facilities;

(ii) Does the doctrine of expert witness immunity apply, in whole or in part, to the allegations; and

(iii) Was the applicant subjected to discrimination in relation to any of the cited Code-protected social areas because of disability, family status, marital status, and/or record of offences, and/or reprisal; and

(iv) If issue (iii) is answered in the affirmative, what is the appropriate remedy?

CODE JURISDICTION

17The respondents ask the Tribunal to dismiss the Application on the basis that the Tribunal does not have jurisdiction over the subject matter of the allegations. The respondents submit that their IME does not relate to the applicant’s employment or her membership in a union and does not come within the meaning of services, goods and facilities.

18The Tribunal is required to take a broad, liberal and purposive interpretation of the Code: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Limited, [1985] 2 S.C.R. 536, 1985 CanLII 18 (S.C.C.) (“O’Malley“) and Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, 1996 CanLII 231 (S.C.C.) (“Gould”). Determining whether the context of an Application comes within the meaning of the Code’s social areas is a fact-specific exercise: see Gould.

i.) Employment & Membership in a Union

19The respondents ask the Tribunal to dismiss the Application on the basis that they were neither the applicant’s employer nor her union. The applicant submits that the Application relates to her employment and membership in a union because the respondents’ psychiatric report adversely affected her employment status and the processing of her union grievance.

20The absence of a direct employment relationship or union membership is not necessarily determinative of whether the alleged circumstances come within the purview of sections 5 and 6 of the Code. Both sections include broad and general language which provide for a right to equal treatment “with respect to” employment and membership in a vocational association. These provisions prohibit discrimination in regards to a wide range of matters related to employment and union membership.

21With respect to section 5, a diverse array of employment-type situations, including pre- and post-employment, temporary contracts, non-traditional work arrangements, and even the behaviour of guests, clients and patrons in the workplace, have been held to be within the ambit of “with respect to employment”: see Loomba v. Home Depot Canada, 2010 HRTO 1434 and the cited cases. Section 6 has been interpreted to include a union’s collective agreement negotiations and its role in facilitating workplace accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970.

22I recognize that, because the IME arose out of the applicant’s workplace grievance, the IME process appears, at first blush, to be “with respect to” the applicant’s employment. However, there was no employment relationship or union association between the applicant and the respondents. The parties’ connection and contact pertained solely to the IME. The respondents were retained to collect and analyze information about the applicant’s psychiatric status. Therefore, the impugned dealings between the applicant and the respondents that are the subject of this Application did not give rise to or constitute an employment relationship or involve interactions in the workplace. Although the phrase “with respect to” has been understood to be “widest possible scope” (see for example, Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765), nevertheless, an interpretation of this phrase to include the respondents’ IME in section 5 would appear to be beyond the ordinary meaning of this provision.

23For the reasons that follow, I find that the applicant’s involvement with the respondents is better understood within the context of section 1 of the Code. Alternatively, given that the IME process was conducted in order to gather information for accommodating the applicant at her workplace, the social area of employment may be understood to have been engaged in combination with section 1.

ii) Services, Goods and Facilities

24The respondents submit that no service was provided to the applicant because there was no doctor-patient relationship and, therefore, even if the allegations in the Application were true, they do not properly fall within the meaning of “services”. The respondents argue that the alleged discriminatory service, namely the IME, was a service for Sunnybrook, ONA and the arbitrator.

25The applicant submits that the Application should not be dismissed because “[t]he services of these doctors to the Third Parties have a direct impact on me because they offered suggestions and recommendations affecting my return to work and therefore should be classified and accepted in the social area of ‘services, goods and facilities’.”

26Section 1 of the Code states:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

27Section 10 of the Code does not provide a full definition of “services” and only specifies a list of items which are not included in the meaning of “services”, those being a levy, fee, tax or periodic payment imposed by law. In Braithwaite v. Ontario (Attorney General), 2005 HRTO 31, (“Braithwaite”), the Hon. Peter Cory, sitting as a member of this Tribunal, explained that “services” means “something which is of benefit that is provided by one person to another or to the public” (para. 22). This aspect of Braithwaite was confirmed by the Ontario Divisional Court, 2007 CanLII 56481 (Div. Ct.) at paras 33-42.

28In Hazel v. Ainsworth Engineered, 2009 HRTO 2180 (“Hazel”), the Tribunal affirmed that “services” in section 1 of the Code includes dispute resolution procedures in labour arbitration (paras. 71 and 72):

...I do accept that tribunals and courts provide services within the meaning of the Code. I also accept that labour arbitration is a service, though I do not find it necessary in this case to determine precisely who is responsible under the Code for providing any particular element of the service. A labour arbitration is established under the terms of a collective agreement to which the employer and the union are parties. It may be argued that the parties play a role in providing the service. For the purposes of this decision, I will assume the arbitrator or mediator has at least some responsibility in providing the service, without discrimination, in accordance with the Code.

The “service” is the dispute resolution process. Where an individual has a dispute, and pursuant to a statute or contract, that dispute may be referred to dispute resolution, the process is a service within the meaning of the Code.

29Similarly, in Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595, the Tribunal determined that, while the social area of “services” does not include the content or reasons of an adjudicative decision, section 1 may capture the “underlying benefit” (para. 13).

30Relying on Cooper v. Pinkofskys, 2008 HRTO 390 (“Cooper”), the respondents suggest that there has to be direct service relationship to engage section 1 of the Code. The facts in Cooper, which involved a complaint of discriminatory cross-examination, are distinguishable from the current Application. The Tribunal found that the applicant, a prosecutorial witness, did not have a service relationship with defence counsel. The Tribunal held that, given defence counsel’s duty to fearlessly advance the interests of the accused client, no benefit or assistance was provided by defence counsel to the prosecutorial witness.

31In my view, section 1 of the Code applies to the circumstances alleged in this Application. The meaning of “services” should be accorded a liberal and expansive interpretation given the remedial nature of the Code and the fact that the Code’s definition of “services” has not been statutorily restricted. I reject the respondents’ narrow interpretation of “services”. The definition confirmed by the Court in Braithwaite does not require that the applicant establish that the service was intended or performed solely for her or that the “benefit” be confined to something that she finds positive or favourable.

32Unlike defence counsel’s cross-examination in Cooper, the essence, as well as the ancillary, objects of the IME related to the applicant. The IME was conducted as part of the arbitration process of the applicant’s grievance and the purpose of the IME was to gather information to facilitate the applicant’s accommodation. While the respondents were retained by Sunnybrook and ONA, the applicant was the person examined and the IME was intended to be used by the employer, the union and possibly the arbitrator for addressing the applicant’s needs. The applicant was clearly contemplated as a recipient, if not the beneficiary, of the IME and there is no doubt that the outcome of the IME would accrue to the applicant.

33In addition, I note that the section 1 of the Code encompasses not just “services” but also provides for equal treatment with respect to “facilities” as a distinct, protected social area. The applicant alleges that Bacchiochi failed to accommodate her disability in the provision of proper seating and writing arrangements when she attended at his office for psychological testing. Seating arrangements in movie theatres were held to be “facilities” in Turnbull v. Famous Players Inc., 2001 CanLII 26228 (ON H.R.T.) (“Turnbull”), although the meaning of the term was not explored.

34The Concise Oxford English Dictionary defines the term “facility”, and its plural “facilities”, as “a building, service, or piece of equipment provided for a particular purpose”. The Merriam-Webster Dictionary indicates that “facilities” involves “something that makes an action, operation, or course of conduct easier”.

35Although “services” and “facilities” are frequently read in conjunction, these words refer to different things. For example, in University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353, the Supreme Court of Canada discussed “services” and “facilities” as separate items with the former being educational programs provided by the university and the latter being the physical access to the university. Chief Justice Lamer, on behalf of the majority, held that a rating sheet stating an instructor’s evaluation of a student came within the concept of “services” and the key to the university building came within the concept of “facilities”.

36Based on the preceding definitions and the case law, it appears that, while “facilities” may include services and “services” may include facilities, depending on the circumstances, the concepts may be distinguishable because “facilities” also refers to such matters as physical amenities and supportive measures. I conclude the usability and accessibility of environmental spaces and structures, as well as conveniences and supports, are captured by the concept of “facilities” and that such facilities are often an adjunct feature or subset to the delivery of “services”.

37Thus, I find that the allegation of inadequate testing amenities in Bacchiochi’s office would trigger the protection of equal treatment with respect to “facilities” and that “services” and “facilities” overlap in this situation. With respect to the remaining allegations regarding the respondents’ IME, I find that they are covered by the Code‘s section 1 protection in respect of both “services” and “facilities” because, while the respondents’ assessment and opinions are “services”, I find the environment within which the IME occurred engages the concept of “facilities”. As noted above, alternatively, all allegations would conjunctively engage the social areas of services and facilities, and employment.

EXPERT WITNESS IMMUNITY

General Principles

38The respondents allege that the Application should be dismissed because they are protected by the doctrine of expert witness immunity, which they submit provides an absolute immunity from all types of liability, including alleged human rights violations, based on the expert’s evidence in a judicial proceeding.

39The principle of witness privilege provides that witness statements made in the course of judicial proceedings are protected from action. The doctrine of expert witness immunity is derived from this principle and protects expert witnesses from legal liability for their privileged statements. A review of the jurisprudence indicates that the doctrine of expert witness immunity stems from two overarching policy rationales:

1.) The idea that immunity fosters frank, accurate and reliable expert evidence because witnesses will testify openly without fear of legal repercussions; and

2.) The idea that immunity ensures the finality of judicial decisions and prevents re-litigation of the underlying dispute through an action against the expert witness.

See Fabian v. Margulies, (1985), 1985 CanLII 2063 (ON CA), 53 O.R. (2d) 380 (C.A.) (“Fabian”); Carnahan v. Coates, 1990 CanLII 2299 (BC S.C.) (“Carnahan”); and M.N. v. Froberg, 2009 ABQB 145 (“Froberg”).

40In Fabian, the Ontario Court of Appeal affirmed that a doctor was immune from a libel and malpractice suit on the basis that the doctor’s medical-legal report and oral testimony were privileged. The Court of Appeal accepted the lower court’s decision that (page 381):

The absolute privilege extending to the oral evidence of the doctor would be rendered illusory if he could be sued for the same statements made in a report he is statutorily required to prepare in order to give his oral testimony.

41In Carnahan, a motion for summary judgment was granted to dismiss a negligence action against a psychologist being sued by a parent for the psychologist’s expert testimony in a child access case. Given the limited Canadian jurisprudence on the issue, the British Columbia Supreme Court canvassed several English and American authorities for the common law rule of immunity. The Court determined that the imposition of civil liability on expert witnesses for their opinions could create a chilling effect risking the potential deprivation of expert assistance to courts, as well as leading to duplicative litigation. The Court held that “the protection of the integrity of the judicial process requires…an expert witness be immune from suit by any person with whom his only relationship derives from the judicial proceeding” (page 25).

42Expert witness immunity has also been held to attach to evidence given in quasi-judicial proceedings: McLennon v. Furlong, 2001 CanLII 24030 (ON C.A.) (“McLennon”); Howatt v. Klassen, 2005 CanLII 11191 (ON S.C.) (“Klassen”); and Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115 (“Elliott”).

43The case law is clear that expert witnesses who provide oral or written evidence in judicial or quasi-judicial proceedings are protected from liability. Documents and reports created for and used in preparation of such witness testimony have also been covered by privilege and immunity: Fabian; McLennon; and Klassen.

44However, the case law is less clear with respect to the degree to which witnesses are accorded immunity for out-of-court comments and actions. In Elliott, Cromwell J.A. (as he then was) described the state of the law as a “grey area” with respect to how far the immunity extends to things said and done out-of-court. He noted that only protected occasions, not words, are entitled to immunity (para. 114):

The immunity applies to words said or conduct performed on a protected occasion, the protected occasion being a judicial or a quasi-judicial proceeding: Brown at ¶ 12.4(2). Thus, publishing defamatory words is not actionable if done in the course of judicial or quasi-judicial proceedings. It is critical to understand that it is not the nature of the conduct or the words which is the focus of the immunity, but the occasion on which the words are said or the conduct is performed.

Cromwell J.A. held that if the immunity claimed over the impugned conduct is not settled in law, then consideration must be given to whether immunity is necessary to protect the occasion and such an assessment must be guided by the public policy rationales for immunity. Thus, things witnesses say and do outside of court may be insulated in order to effectively shield future evidence and testimony intended for a judicial proceeding.

45In summary, the following principles can be gleaned from the legal authorities with respect to expert witness immunity:

1.) Immunity shields from liability expert opinions given in judicial and quasi-judicial proceedings;

2.) The core policy rationales for immunity are: i) to promote the candour and cooperation of expert witnesses to assist adjudicative decision-makers and ii) to promote the administration of justice by preventing re-litigation;

3.) Immunity applies to an expert witness whose only relationship with the applicant is derived from the litigation;

4.) Immunity extends to documents and reports prepared for judicial and quasi-judicial proceedings; and

5.) Immunity may extend to out-of-court comments and actions if protection of those things is necessary to uphold the public policy rationales underlying immunity.

Application of Expert Immunity & Code Considerations to Allegations

46The applicant makes five specific allegations against the respondents:

(i) The respondents’ report discriminatorily concluded she was mentally disabled, and was not physically disabled, because of her marital status, family status and past criminal charge;

(ii) McMaster posed inappropriate questions with respect to her marital status and family status;

(iii) The respondents breached confidentiality by including information in their report that she had requested be excluded about her family and past criminal charge;

(iv) Bacchiochi failed to accommodate her physical disability by providing inadequate seating arrangements for her to complete the written questionnaires; and

(v) The respondents’ report was a form of reprisal against her because of her previous complaints of human rights violations.

The issue to be determined is whether any of these five allegations are protected by the doctrine of expert witness immunity. For the reasons that follow, I find that given the prevailing public policy rationales and important Code considerations, all alleged aspects of the respondents’ IME, except one, are covered by expert witness immunity.

47The respondents claim that all aspects of their psychiatric assessment, including the interviews, testing, opinions and ultimate report, are immune from human rights liability because of their status as independent medical examiners retained as part of the arbitration. They argue that medical examiners retained by litigation adversaries should not be subject to human rights complaints by the individual they examined because the examiner’s opinions and reports are privileged. The respondents contend that “[t]he Code does not, and is not intended to, provide an avenue for individuals unhappy with the results of independent medical assessments they have undergone to attack the expert assessors and their findings, opinions and conclusions.”

48The respondents relied on jurisprudence arising from the areas of negligence and libel/slander law for the proposition that they are absolutely immune from human rights scrutiny. Based on the cases tendered by the respondents, no legal authorities appear to be precisely on point. The negligence and defamation actions relied upon by the respondents in favour of sweeping expert witness immunity are distinguishable from the Application at issue here, which seeks to invoke quasi-constitutional protections.

49I have concerns as to whether blanket immunity from review under the Code is applicable to, and appropriate for, all aspects of the respondents’ IME process. An absolute application of the doctrine of expert-witness immunity to exempt review under the Code would be inconsistent with the long-standing human rights principle that defences and exceptions are to be narrowly construed: O’Malley.

50In the circumstances of this case, and having proper regard for the human rights context within which the issue arises, I find that blanket immunity over all aspects of the IME is not necessary to uphold the public policy rationales underlying immunity. I believe a distinction must be drawn between certain facets of the IME process that are integral to the examination and opinion formulation (protected by immunity) versus the facets of the process that are non-evaluative or administrative functions (not protected by immunity). In the context of this case, there is an important difference between the circumstances or conditions in furtherance of the expert assessment and the circumstances or conditions surrounding access and the accessibility of the assessment process, which engages human rights considerations.

51Although the decision in Hazel concerned adjudicative decision-making, the Tribunal recognized the distinction between the “contents” of an adjudicative decision and “accessibility” in the process leading to the adjudicative decision. The Tribunal held the latter may be the subject of human rights scrutiny. I am guided by this approach and find the following analysis in Hazel instructive (paras. 72 to 74):

The requirement in section 1 of the Code is that every person should have a right of equal access to the dispute resolution process, and be able to participate in an effective, meaningful way, without discrimination and regardless of a proscribed ground.

In relation to disability, the obligation placed on the service provider may include, for example, the requirement to provide an accessible built environment or a hearing or mediation facility which is physically accessible, subject to the defence of undue hardship. The right to equality in the provision of services may also mean accommodation in the way materials (including decisions) are provided, and the proceeding is conducted, so as to enable a party, counsel or witness to effectively participate in the hearing or mediation process.

The right under section 1 to equal treatment in the provision of services relates to access to the decision-making or mediation process, not the outcome.

52In Hazel, the manner in which the mediator conducted the mediation was alleged to violate the applicant’s rights to equal service because of disability. The Tribunal found that the claim was barred by judicial immunity because it was, in fact, a complaint entirely about how the mediator exercised his dispute resolution functions.

53Based on the foregoing, it appears that, while judicial immunity protects the contents of adjudicative decisions and the functions of dispute resolution, a claim may, nevertheless, lie with respect to barriers to participation and accommodation of needs in that process. Similarly, I conclude that the doctrine of expert witness immunity does not confer absolute immunity from all human rights allegations. I am not persuaded that the immunity doctrine, intended to protect the creation and content of expert opinions, necessarily exempts respondents from human rights responsibility for accessibility of the assessment process and the duty to accommodate in that process.

54I find there may be components of an IME process which are independent of the evaluation and opinion elements of the expert assessment and, thereby, may attract liability under section 1 of the Code. However, I also recognize that decision-makers must be wary of human rights applications being used as a back door route to attack an expert opinion. This concern can be addressed by careful examination of the allegations to determine whether the impugned conduct was engaged in or a necessary part of the expert witness’s creation, analysis and production of an expert opinion and, if so, protected by the doctrine of expert witness immunity.

55Based on the policy principles underpinning the immunity doctrine, it appears that immunity would protect the respondents’ statements, opinions and report because these matters clearly emanate from the expert evaluation. In so far as this Application attacks the substance of the respondents’ opinions (allegation (i)) or challenges the questions posed during the assessment (allegation (ii)) or the information and conclusions included in the report (allegations (iii) and (v)), I find those allegations must be dismissed because the respondents’ statements, opinions and report were conceived for the arbitration process. I accept that the policy principles to promote candid opinions and deter duplicative litigation apply to the respondents’ statements, opinions and report and, therefore, these aspects of the respondents’ conduct are shielded by immunity and exempt from human rights liability.

56However, to the extent that the applicant’s allegations relate to the accessibility of the administration of the IME, namely inadequate seating to address her disability-needs (allegation (iv)), I find this matter is separate from and external to the expert’s evaluative functions. The respondents did not suggest that the alleged seating and writing arrangements were integral to their expert analysis in contemplation of the arbitration or a necessary component of their compilation or consideration of information for their expert opinion. Thus, I conclude that the allegation regarding the accessibility of Bacchiochi’s seating arrangements is not covered by expert witness immunity.

57I further find that accessibility concerns do not engage the public policy rationales underpinning the immunity doctrine. As previously noted, the touchstone principles at the heart of the expert witness immunity are two-fold: ensuring full and free testimony and avoiding multiplicity of proceedings. In my view, the policy justifications for immunity are not advanced by insulating experts from human rights responsibility with respect to the administrative components and non-evaluative elements of their assessment process. Imposing Code liability for the accessibility of the assessment process does not implicate the expert’s substantive opinions and, therefore, should not impinge on objectivity and forthrightness, nor induce re-litigation of the underlying dispute. The countervailing human rights imperative, namely to ensure that services and facilities are provided free of discrimination, are compelling and outweigh the concerns of judicial economy.

58I conclude that the alleged problems with Bacchiochi’s seating arrangements cannot be shielded by application of the doctrine of expert witness immunity, and that allowing the Application to proceed with respect to this alleged accessibility concern would not undermine the policy objects of the doctrine of expert witness immunity. Accordingly, the applicant’s allegations with respect to issues (i), (ii), (iii) and (v) are dismissed as subject to the doctrine of expert witness immunity. Thus, the only allegation that remains outstanding in the present Application is issue (iv), which raises concerns with respect to the provision of appropriate seating and writing arrangements.

ALLEGED FAILURE TO ACCOMMODATE

Applicant’s Allegations

59The applicant testified that Bacchiochi failed to accommodate her physical disability by providing her with inappropriate seating and writing facilities. The applicant testified that she was seated by Bacchiochi’s assistant at a coffee table to complete the lengthy psychological questionnaires. The applicant alleges she informed Bacchiochi’s assistant that she was unable to work off the coffee table because of her neck injury and writing at the coffee table would require prolong bending of the neck and cause pain.

60The applicant testified that she was then taken to the hallway and seated at a desk with a failing light. As the applicant began to work on the questionnaires, a repair person came to fix the the light and the applicant had to leave the desk. The applicant returned to the room with the coffee table and, in an effort to complete the questionnaires without straining her neck, the applicant pulled up a chair to the window ledge and began writing there. The applicant testified that, while this posture was also uncomfortable, she was able to move herself around to alleviate the discomfort.

61The applicant testified that Bacchiochi observed her awkward position at the window (documented in the IME report) and took no steps to accommodate her needs. The applicant believes that Bacchiochi deliberately made her undertake the testing in difficult conditions and failed to consider her disability-related needs.

Respondent’s Response

62Bacchiochi acknowledged that the psychological questionnaires were extensive, involving over a thousand questions, and took significant time to complete. Bacchiochi denies that he purposefully made the applicant complete the questionnaires in seating arrangements that were unsuitable to the applicant because of her neck injury. He testified that at the outset of the appointment he observed the applicant bent over the coffee table filling out the questionnaires.

63Bacchiochi acknowledged that he later observed the applicant filling out the questionnaires at the window ledge. He testified that, because he knew the applicant had neck pain issues, he questioned his assistant as to why the applicant was seated at the window. According to Bacchiochi, his assistant informed him that the applicant had been offered a desk but declined. Bacchiochi states that he approached the applicant at the window and also offered her a desk; however, the applicant indicated that she preferred to remain at the window because it allowed her to switch positions. Bacchiochi also indicated that he told her that another desk was available. He testified that the applicant did not complain about the testing conditions during the assessment. Bacchiochi’s assistant did not testify at the hearing.

Decision

64The initial evidentiary burden rests with the applicant to establish that, on a balance of probabilities, she has been discriminated against. Accordingly, I am required to determine whether the applicant has proven, on a balance of probabilities, that the respondent was aware of the applicant’s disability-related needs and failed to accommodate those needs.

65I find that the evidence is insufficient to establish, on a balance of probabilities, that the applicant notified Bacchiochi of her disability-related needs and that Bacchiochi failed to address those needs. I highlight that I have placed no weight on the hearsay statements Bacchiochi attributed to his assistant.

66The applicant testified that, when she alerted Bacchiochi’s assistant that she was unable to complete the questionnaires at the coffee table, she was immediately accommodated at a desk. The applicant did not suggest that she approached the assistant after she had to move for the light repair. It appears that, when it was necessary for her to move, the applicant decided on her own to pull a chair to the window ledge and work there. The applicant acknowledged that she did not complain about the testing conditions during the assessment. As such, the applicant’s own evidence does not accord with her claim that Bacchiochi failed to address her disability-related needs.

67Neither in her testimony nor in her Application did the applicant indicate that she directly advised Bacchiochi that she required a desk, or any other measure of accommodation, to complete the questionnaires. Accordingly, the evidence does not indicate that the applicant requested any particular accommodation of Bacchiochi. Based on her own evidence, it appears that the applicant only advised Bacchiochi’s assistant that she was uncomfortable on the couch and, in response to this concern, the applicant was provided with a desk. Sometime later, the applicant moved to the window ledge where she acknowledges Bacchiochi approached her.

68Bacchiochi’s evidence was generally consistent with the applicant’s description of the events – the applicant was first observed on the couch and later at the window ledge. Both parties agree that Bacchiochi spoke to the applicant when she was working on the questionnaires at the window ledge. According to Bacchiochi, and I accept his testimony on this point, he was sensitive to the applicant’s needs and asked her if she would like to move to a desk; however, the applicant declined stating that the window ledge allowed her to switch her positioning. This evidence was in harmony with the applicant’s evidence that, while at the window ledge, she moved her positioning from side to side in order to relieve discomfort. Bacchiochi states that the applicant never informed him of any concerns regarding the seating arrangements and similarly the applicant never testified that she expressly advised Bacchiochi of any such concerns.

69In sum, I conclude that the evidence does not establish, on a balance of probabilities, that the applicant notified Bacchiochi of her disability-related needs and that Bacchiochi failed to address those needs.

CONCLUSION

70For all of the above reasons, the Application is dismissed.