HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Asbjørn Jokstad
Applicant
-and-
Royal College of Dental Surgeons of Ontario
Respondent
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Jokstad v. Royal College of Dental Surgeons of Ontario
appearances BY
Asbjørn Jokstad, Applicant ) Jeff Baigrie and Darla Rettie,
) Counsel
Royal College of Dental Surgeons ) Raj Anand and Mark Edelstein,
of Ontario, Respondent ) Counsel
INTRODUCTION
1The purpose of this Decision is to determine whether the Tribunal should dismiss the Application on a preliminary basis pursuant to section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) and on the basis of various common law doctrines.
BACKGROUND
2The applicant, Asbjørn Jokstad, is a dentist who is originally from Norway. Between 1979 and 1994, he completed a Doctor of Dental Surgery degree, a Doctorate degree in Dental Science, and specialist training in prosthodontics at the University of Oslo. His subsequent career in dentistry consisted of teaching and research on prosthodontics and treating patients.
3In 2005, the University of Toronto appointed the applicant to the position of Professor and Head of Prosthodonics at its Faculty of Dentistry. The applicant immigrated to Canada to take up his appointment.
4The respondent, the Royal College of Dental Surgeons of Ontario, is delegated the responsibility for registering individuals to practise dentistry in Ontario pursuant to the Dentistry Act, 1991, S.O. 1991, c. 24 and the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. The respondent college issues certificates of registration in general, speciality, academic, and other classes of dentistry in accordance with a public protection mandate pursuant to Regulation 205/94 of the Dentistry Act.
5On September 25, 2005, the respondent college issued the applicant an academic certificate of registration, which only allowed him to practise prosthodontics on patients within the Faculty of Dentistry. On December 19, 2005, the applicant applied to the respondent college for a speciality certificate of registration in prosthodontics, which would allow him to practise anywhere in Ontario.
6Regulation 205/94 of the Dentistry Act provides that the successful completion of the National Dental Speciality Examination (“NDSE”), which is administered by the Royal College of Dentists of Canada (“RCDC”), or another specialty examination set or approved by the respondent college, is a non-exemptible requirement for issuing a specialty certificate of registration. Accordingly, a Panel of the respondent college’s Registration Committee decided that the applicant could not be issued a speciality certificate unless he successfully completed the NDSE in prosthodontics.
7In 2006, the applicant took and failed both the written and oral components of the NDSE in prosthodontics. The RCDC offered him the opportunity to re-take the NDSE, but he declined.
8Instead, the applicant filed a new application with the respondent college for a speciality certificate of registration in prosthodontics, and took the position that the non-exemptible examination requirement discriminates against foreign-trained dentists such as him, and therefore ought not to be applied in light of the respondent’s college’s obligations under the Code.
9The applicant was represented by legal counsel throughout the new application process. He appeared before a Panel of the Registration Committee on May 2, 2008, and provided oral submissions and evidence. He also provided written submissions, including legal arguments, and documentary evidence to the Panel.
10The Panel subsequently obtained a legal opinion from a lawyer with expertise in human rights on the discrimination issue raised by the applicant. On August 18, 2008, the Panel shared the legal opinion with the applicant, and allowed him to provide written submissions in response to the opinion.
11On February 4, 2009, the Panel released a Notice of Order and Reasons for Decision, which denied the applicant’s application for a speciality certificate of registration in prosthodontics. The Panel determined that the applicant did not meet the registration requirements in Regulation 205/94, and that the non-exemptible examination requirement did not discriminate against the applicant. With respect to the respondent college’s public protection mandate, the Panel stated that it had a reasonable belief that the applicant did not have sufficient knowledge, skills and judgment to competently engage in the kind of dental practice authorized by the certificate.
12The applicant had a statutory right of review or hearing before the Health Professions Appeal and Review Board (“HPARB”), but did not exercise this right. Instead, on February 3, 2010, he filed an Application with this Tribunal under section 34 of the Code, which alleged that the respondent college discriminated against him with respect to services because of his place of origin and ethnic origin.
13On April 29, 2010, the respondent college filed a Response. On June 10, 2010, the respondent college also filed a Request for an Order During Proceedings, which, together with the Response, requested that the Tribunal dismiss the Application because pursuant to s. 45.1 of the Code another proceeding has appropriately dealt with the substance of the Application, and because the Application is outside the Tribunal’s jurisdiction due to the doctrines of judicial immunity, abuse of process, collateral attack, and deliberative secrecy.
14The Tribunal held a hearing on these preliminary issues on April 4, 2011. The parties also provided written submissions and documentary evidence and case law in support of their submissions.
15The Supreme Court of Canada recently issued its decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, which dealt with a very similar provision to section 45.1 of the Code in British Columbia’s human rights legislation. The Ontario Divisional Court also recently issued its decision in College of Nurses v. Trozzi, 2011 ONSC 4614 (“Trozzi (Div. Ct.)”), which dealt with the Tribunal’s interpretation of section 45.1 in the context of a prior proceeding before the College of Nurse’s Registration Committee and HPARB.
16The Tribunal issued a Case Assessment Direction (“CAD”) which requested further written submissions on the issues raised at the preliminary hearing, with reference to the two above decisions. The CAD set one due date for both parties’ submissions. The applicant filed his written submissions prior to the due date, and the respondent college filed its submission on the due date. In a number of paragraphs, the respondent college’s submissions responded to the applicant’s submissions. The applicant subsequently objected that the respondent college’s submissions did not comply with the CAD. The respondent college denied that the CAD prohibited response submissions.
17In the circumstances of this case, I did not deem it necessary to consider the respondent college’s response submissions.
ANALYSIS
18Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules of Procedure provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application. This Tribunal has found that the Supreme Court’s reasoning in Figliola, supra, applies to the interpretation of section 45.1 of the Code. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.
19The first issue to consider is whether the process before the respondent college’s Registration Committee was a “proceeding” within the meaning of s. 45.1 of the Code. In my view, the answer to this question was answered definitively by the Divisional Court in Trozzi (Div. Ct.), supra, which stated at paras. 37-38:
(…) The Registration Committee’s consideration of the matter is not a private internal process established… without formal guarantees of procedural fairness, impartiality or independence. On the contrary, its decisions are those of a body created by statute which owes a duty of procedural fairness and is subject to both statutory appeal and judicial review if it fails to consider Code complaints. The Registration Committee’s authority and mandate derives directly from the Registered Health Professions Act, the Health Professions’ Procedural Code, and the Nursing Act, 1991. Section 3(2) of the Health Professions Procedural Code explicitly provides that the College has a duty to regulate the licensing of nurses and registered practical nurses in a manner which serves and protects the public interest. It fulfills that mandate through its Registration Committee. The appointment process for members of the Registration Committee ensures that they have the requisite knowledge and understanding of health related issues, by virtue of their education and training, so as to discharge the public protection mandate in the context of licensing RNs and RPNs. See sections 4 and 10 of the Health Professions’ Procedural Code. Furthermore, sections 15 to 22.14 and 70 of the HPPC provide a detailed procedure for the Registration Committee’s decision making, which includes disclosure requirements, a right to a hearing which is “transparent, objective, impartial and fair” and which provides for a written decision, with reasons, together with the right to have the Registration Committee’s decision reviewed by HPARB and a further right of appeal from the decision of HPARB to the Divisional Court. Superimposed on the statutory process is the opportunity for a licensed applicant to have the court conduct a judicial review of the Registration Committee’s functions and decisions.
It is quite clear the process leading to a decision by the Registration Committee is a “proceeding”.
See also College of Physicians and Surgeons of Ontario v. Payne (2002), 2002 CanLII 39150 (ON SCDC), 219 DLR (4th) 350 at paras. 19-20.
20In his submissions, the applicant stated that the Tribunal should not follow the Divisional Court’s finding on this matter because it was obiter, and is therefore persuasive, but not binding. Rather, he stated that the Tribunal should continue to follow the Tribunal’s finding in Trozzi v. College of Nurses of Ontario, 2010 HRTO 1892 (“Trozzi (HRTO)”), which stated at paras. 53-54 that the process before the College was not a “proceeding” because the very basis of the complaint before the Tribunal was that the Registration Committee’s actions were discriminatory, and the process was not independent and impartial.
21I disagree that the Divisional Court’s finding was obiter, and even it was, I see no reason not to follow it. Accordingly, I find that the process before the respondent college’s Registration Committee was a “proceeding” within the meaning of section 45.1 of the Code.
22The second issue to consider is whether the proceeding before the respondent college’s Registration Committee appropriately dealt with the substance of the Application. In my view, it did. Section 45.1 of the Code is the statutory reflection of the collective principles underlying the common law doctrines of issue estoppel, collateral attack, and abuse of process, which are used as vehicles to transport and deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness. See Figliola, supra, at paras. 24-25.
23The principles underlying section 45.1 of the Code can be summarized as follows:
It is in the interests of the public and the parties that the finality of a decision can be relied on.
Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice. On the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings.
The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature.
Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision.
Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.
See Figliola, supra, at paras. 34-35.
24In Trozzi (Div. Ct.), supra, at para. 33, the Divisional Court also provided the Tribunal with a specific direction with respect to reviewing the decisions of other tribunals that have a public protection mandate:
The Human Rights Tribunal is not an appellate body for other tribunals and it cannot supervise other tribunals which have exercised a public protection mandate based on their own expertise. The Human Rights Tribunal has no expertise in protecting public health.
25In deciding whether another proceeding has appropriately dealt with the substance of the Application, the Tribunal must ask two questions: (1) whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal, and (2) whether there was an opportunity for the applicant to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. See Figliola, supra, at para. 37.
26With respect to the first question, in my view, the discrimination issue decided by respondent college’s Registration Committee was essentially the same as discrimination issue before this Tribunal. The applicant’s main allegation before both tribunals was that the non-exemptible examination requirement discriminates against foreign-trained dentists such as him.
27With respect to the second question, in my view, the applicant had a full opportunity to know the case to be met and had a chance to meet it. The applicant had an oral hearing before a Panel of the Registration Committee. He also had the opportunity to provide written submissions, including legal arguments, and documentary evidence to the Panel. Finally, the Panel shared a legal opinion on the discrimination issue with him, and he provided written submissions in response to the opinion. The applicant was represented by legal counsel throughout this process.
28In his submissions, the applicant stated that the Registration Committee did not appropriately dealt with the substance of his Application because the Panel did not address all of the discrimination issues that he raised, including his allegation of systemic discrimination against foreign-trained dentists, and the Panel did not apply the correct human rights analysis for adverse effect discrimination as set out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3.
29However, the Tribunal cannot consider whether the Registration Committee properly addressed the merits of the discrimination allegations. In short, it cannot parse the reasons of the Registration Committee. Such issues are properly the subject of a review or hearing before HPARB, and, if necessary, an appeal of the decision of HPARB to the Divisional Court, and are not grounds for lateral adjudicative poaching or collateral attack by this Tribunal. See Figliola, supra, at paras. 38 and 50 and Trozzi (Div. Ct.), supra, at para. 43.
30The applicant also submitted that even if this Tribunal determines that the same facts and issues were essentially before the Registration Committee, and that essentially the same issues of discrimination had been appropriately dealt with, this Tribunal still has jurisdiction to deny the respondent college’s request to dismiss his Application on a preliminary basis because it would be a “substantial injustice” not to allow his Application to proceed, and poor procedural choices by the applicant should not be fatal to an appropriate consideration of his Application on its merits. See Figliola, supra, at paras. 1 and 95.
31Specifically, the applicant stated that if the Tribunal grants the respondent college’s request to dismiss his Application, he will be denied any right of appeal of the Registration Committee’s decision. He stated that when he decided to bring his Application to this Tribunal instead of proceeding to the statutory appeal body, HPARB, the case law supported the availability of Tribunal review of College registration decisions. He also stated that the 30-day notice period for appealing to HPARB has expired.
32I disagree. I understand that the applicant is frustrated by the fact that two recent court cases undermined his submissions, but it is not correct that when he filed his Application with this Tribunal that the case law supported the availability of Tribunal review of College registration decisions. Rather, in my view, the Tribunal’s case law was not clear on this particular issue.
33Section 45.1 of the Code came into effect on June 30, 2008. The applicant filed his Application with this Tribunal on February 3, 2010. Between those two dates, the Tribunal’s jurisprudence on section 45.1 was developing. Furthermore, in his submissions, the applicant cited little of the Tribunal’s case law on section 45.1 prior to filing his Application. Instead, he focused almost exclusively on the Tribunal’s decision in Trozzi (HRTO), supra, which was decided after he filed his Application, and was subsequently overturned by the Divisional Court.
34In these circumstances, I do not see how it would be a “substantial injustice” not to allow the applicant’s Application to proceed. There are always risks in litigation. The applicant chose to file an Application with this Tribunal, rather than follow the vertical line of review and appeal to HPARB and the Divisional Court, and has to live with that choice.
ORDER
35The Application is dismissed.
Dated at Toronto, this 18th day of January, 2012.
“Signed by”
Ken Bhattacharjee
Vice-chair