Nancy Winlove-Smith v. Transitional Council of the Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2011 HRTO 608

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Winlove-Smith

Applicant

-and-

Transitional Council of the Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario

Respondent

DECISION

Adjudicator: Kathleen Martin

Date: March 29, 2011

Citation: 2011 HRTO 608

Indexed as: Winlove-Smith v. Traditional Council of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario

APPEARANCES

Nancy Winlove-Smith, Applicant ) Self-represented

Transitional Council of the Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, Respondent ) Rebecca C. Durcan

1This is an Application alleging discrimination in employment and membership in a vocational association on the basis of ancestry and place of origin, contrary to sections 5 and 6 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code). A summary hearing was held pursuant to Rule 19A of the Tribunal’s Rules of Procedure. I have decided that there is no reasonable prospect that the Application will succeed.

BACKGROUND

2The Application arises from the applicant’s interest in becoming a member of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (the “College”). The applicant is an acupuncturist whose qualification is in Contemporary Medical Acupuncture for Health Professionals, also known as “anatomical acupuncture”. The respondent is the organization appointed by the Lieutenant Governor in Council under the Traditional Chinese Medicine Act, 2006, S.O. 2006, c. 27, to complete the necessary and legislated requirements so that the College can come into existence. The applicant alleges that the respondent discriminated against her by proposing a draft registration regulation for the College that excludes anatomical acupuncturists from the College.

3On July 14, 2010, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The Application was delivered to the respondent with the CAD, which directed that the respondent need not file a substantive Response. The CAD provided that the applicant should address at the Summary Hearing the issue of whether the Application in fact alleges discrimination on the ground of ancestry or ethnic origin. The CAD also provided that either party could file any cases or documents they intended to rely upon at the Summary Hearing no later than seven days prior to the teleconference.

4The summary hearing was held on August 19, 2010. Both parties were in attendance.

5In her submissions, before and at the hearing, the applicant clarified the basis of the alleged discrimination. The applicant states that when she took her training in anatomical acupuncture it was the only area of acupuncture study available to her as an English-speaking person, as “Chinese acupuncture” courses were not available in English and she did not speak “Chinese” The applicant argues that by proposing a registration regulation that would deny her entry into the College based on her specific area of training – anatomical acupuncture - the respondent is in effect discriminating against her based on her ethnic origin and ancestry because her mother tongue, which she speaks (English), is a component of her ethnicity. The applicant asserts that the College is the only college that includes acupuncture and she will be denied the ability to practice if she is not admitted to the College.

6The respondent argues that the Application is hypothetical and premature, as the regulation setting out registration requirements for the College is only in draft stage. The respondent states that there is nothing preventing the applicant from applying to the College if and when the College comes into existence. With respect to the merits, the respondent states that the focus of the College is traditional Chinese medicine and that is the reason for the proposed exclusion of anatomical acupuncture, not a practitioner’s ethnicity. The respondent also states that there are seven other colleges under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, that have acupuncture as part of their recognized areas of practice, so the applicant would be permitted to apply to those colleges subject to her meeting their respective requirements.

7I asked the parties during the Summary Hearing to address section 13 of the Code as part of their submissions, but neither was in a position to do so during the conference call.

8On November 4, 2010, the Tribunal issued a further Case Assessment Direction, which addressed the issue of prematurity and sought further submissions at paragraphs 9 to 11 as follows:

[9] Without even considering the merits of the applicant’s human rights argument, it appears to me that there may be a question of whether or not this Application has a reasonable prospect of success based on the respondent’s argument that it is premature. The applicant’s claim stems from a draft regulation and not an existing regulation which has, in fact, prevented the applicant from applying to the College. In the circumstances, subject to section 13, it would not appear that her rights “have been” infringed. However, there is an issue of whether or not section 13 applies to the Application and if it does, how it impacts on the applicant’s and respondent’s arguments.

[10] In order to address this question, I direct that the parties file submissions on the application of section 13 to the Application. In addition, I direct the respondent to file a response (Form 2) so that the Tribunal has a full understanding the respondent’s response to the Application.

[11] The Tribunal will review the submissions received and may determine whether the Application has a reasonable prospect of success based on the material filed and the oral submissions made or may issue further directions to the parties.

9The Tribunal has received further written submissions from the parties.

10The applicant has provided submissions on prematurity and section 13. The applicant argues that her Application is based on the PowerPoint presentation about the draft regulation made by the respondent during its information session to interested individuals at the Hilton Garden Inn on March 24, 2010 and not the “draft legislation”. She states that the former indicates that acupuncturists of programs, defined as “Anatomical Acupuncture”, would be denied entry to the pending College. The applicant further argues that the respondent continues to distribute materials that are discriminatory toward the applicant and relies on the draft registration and professional misconduct regulations that were circulated after the summary hearing; a newspaper article from the “Chinese Today Daily News.com”; and an extract from the respondent’s website (which she asserts leaves it open to the College to reject formal training programs on a subjective basis).

11In its submissions, the respondent takes issue with the scope of the applicant’s submissions stating that she has unfairly expanded the scope of her Application to challenge the proposed registration requirements for grandparented members. In addition, the respondent states that the presentation made on March 24, 2010 communicated the respondent’s “then” position on registration requirements and that as of the date of its submissions, the registration regulation continues to be in a draft form. The respondent denies that section 13 is engaged by the Application.

DECISION

12I find that there is no reasonable prospect that the Application will succeed.

13In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal set out the following approach to summary hearings at paragraphs 8 to 10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

14The relevant provisions of the Code provide as follows:

34. (1) If a person believes that any of his or her rights under Part 1 have been infringed, the person may apply to the Tribunal for an order under section 45.2….

Announced intention to discriminate

13. (1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I. [Emphasis added.]

15The CAD of November 4, 2010 addressed the issue of prematurity. As indicated in paragraph [9] of the CAD referenced above, the applicant’s claim stems from a draft regulation and not an existing regulation which has, in fact, prevented her from applying to the College (or resulting in her rejection as a candidate). In the circumstances, subject to section 13, it would not appear that the applicant’s rights “have been” infringed.

16However, there is a question of whether there is no reasonable prospect that an argument under section 13 will succeed. As noted above, the applicant relies on several sources of documents in this regard, some of which post-date her Application. While I appreciate the respondent’s concern that the applicant has expanded the scope of the original Application, I find, even considering the expanded scope of the Application, that there is no reasonable prospect that the Application would succeed.

17I will now turn to the various documents relied on by the applicant.

18With respect to the draft regulation, the applicant suggests that the determination of patient visits, which are applicable to whether a candidate will be grandparented as a member, is a subjective standard that may “permit” discrimination on the basis of ethnicity. However, elsewhere she concedes that the “material supplied for government approval in the new draft [of the draft registration and professional misconduct regulations] ostensibly complies with section 13. On the basis of these submissions, it is not apparent the applicant is challenging the draft regulation, although even if she is, I find there is no reasonable prospect of success that an argument based on section 13 could succeed.

19It is apparent that the applicant’s concerns stem not from the language of the draft but rather how it may be implemented. Even assuming without deciding that section 13 could otherwise be engaged by a draft regulation, I find that section 13 (which requires the intention of a person to discriminate) cannot have application to an argument based on speculation as to how something may be interpreted.

20The applicant also relies on the slide in the PowerPoint presentation, which was the underlying concern in the original Application. The alleged offending slide states as follows:

Key Proposals

1. Acupuncture

*Only TCM acupuncture

*3-year education (except for Grandparenting)

*Not anatomical acupuncture

*Will have to register with another College

21Considering the content of this slide, I find that the applicant does not have any reasonable prospect of establishing a breach of section 13. Even assuming, without concluding, that section 13 is engaged and that the slide can be considered a “notice, sign, symbol, emblem or other similar representation”, I find that there is no reasonable prospect that the applicant can meet the other requirement of the section – intention. There is no dispute that the presentation was for discussion purposes only and not an intention about the final regulation. In these circumstances, I find there is no reasonable prospect of establishing a breach of section 13.

22I also find that there is no reasonable prospect that the website entry would constitute a breach of section 13. The website entry referenced by the applicant states as follows:

I would like to enroll in a TCM program; how can I be sure that the program is recognized and my rights will be protected?

CTCMPAO is currently in a transition phase, which will last another two to three years. During this time, the transitional Council of CTCMPAO will be developing regulations and policies, including setting entry-to-practice requirements and standards of practice, in order to register TCM practitioners. Once the transitional Council completes this initial work, CTCMPAO will be able to evaluate the educational qualifications of individual applicants. Until then it is not possible to say which programs will be recognized.

23The applicant argues that this constitutes a breach of section 13 because it provides a subjective standard that can be “applied discriminatorily”.

24I find that the applicant’s interpretation is not consistent with the plain reading of the website entry. On its face, the website entry references the transitional nature of the regulatory process and the inability to identify what programs will be recognized. Even assuming, without concluding, that section 13 is otherwise engaged and a website entry is a “notice, sign, symbol, emblem or other representation, I find that there is no basis on which to conclude that this entry announces an intention to discriminate or provides a basis where such intention can be inferred.

25Finally, the applicant relies on the newspaper report. The applicant has interpreted the report and specifically highlights two sections: one which states that the required hours for patient visits for the grandparenting of acupuncturists have increased to a number which is different from that in the draft regulation and a second section that states “TCM” practitioners will not be asked to participate in any form of English “examine”. The applicant alleges that the latter is indicative of “Chinese practitioners” being accommodated whereas “European practitioners” are excluded..

26The applicant does not suggest that the respondent is the author of the article, and, on the basis alone, I cannot see how the newspaper report (assuming, without concluding, that it otherwise engages section 13) could lead to a finding that the respondent violated the applicant’s rights under the Code. There is also a question as to whether or not newspaper content can be subject to a claim under section 13 given that subsection 13(2) states that the subsection shall not interfere with freedom of expression of opinion. Regardless, even assuming without deciding that the newspaper extract can otherwise engage section 13, I find there is no reasonable prospect of success based on the content highlighted. I find that the mere reference to grandparenting requirements or the “examine” requirements for “TCM” (which I assume is a reference to Traditional Chinese Medicine practitioners) would not support a finding of an intention to discriminate.

27The applicant also included submissions and a number of documents related to her practice and qualifications in respect of acupuncture. I did not find it necessary to address these submissions and/or documents as they do not appear to be relevant to the determination of whether section 13 has been violated.

28For the reasons set out above, I find that there is no reasonable prospect that the Application or part of the Application will succeed.

29The Application is accordingly dismissed.