Pidgeon v. College of Nurses of Ontario, 2012 HRTO 1712

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Judith Pidgeon Applicant

-and-

College of Nurses of Ontario, Amanda Achtymichuk, Faira Bari, Anne Coghlan, Catherine Genereux, Kimberly Germain, Jenna Hofbauer, Melissa Jeethan, Shirley Kennedy, Risa Kirshblum, Ann McKenzie, Cara Moroney, Prudence Morton, Lucy O’Hearn-Grant, Johanna Braden and April Ferreira Respondents

DECISION

Adjudicator: Leslie Reaume Date: September 14, 2012 Citation: 2012 HRTO 1712 Indexed as: Pidgeon v. College of Nurses of Ontario

APPEARANCES

Judith Pidgeon, Applicant Self-represented

College of Nurses of Ontario and all Individuals, Respondents Raj Anand, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability, age and record of offences with respect to membership in a vocational association, employment, goods, services, and facilities, and contracts.

2The Application was initially deferred by the Tribunal (Pidgeon vs. College of Nurses of Ontario, 2009 HRTO 2160) on the basis of concurrent legal proceedings. The Tribunal issued a Case Assessment Direction (“CAD”) dated May 19, 2011 acknowledging the settlement of a part of the Application and directing the applicant to provide an updated summary of the remaining allegations she wished to pursue. The Tribunal indicated that it would give further directions after receiving the applicant’s summary.

3By CAD dated September 15, 2011 the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure.

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal observed that in some cases, the focus of the summary hearing will be on the legal analysis and whether the allegations could reasonably be considered to amount to a Code violation. In other cases, the focus will be on the applicant’s ability to point to evidence which is reasonably available which would demonstrate a link between the actions of the respondent and the prohibited grounds alleged by the applicant. The Tribunal also emphasized the importance of being attentive to the fact that in some cases of alleged discrimination, the respondent may be in possession of most or all of the evidence related to the applicant’s allegations and it may be appropriate to give the applicant the opportunity to acquire that evidence through disclosure and cross-examination of the respondent’s witnesses.

6As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17, the Tribunal does not have the power to deal with general allegations of unfairness and that there must be a basis for the allegations beyond mere speculation.

ANALYSIS

7The applicant was given an opportunity to explain to the Tribunal the nature of her allegations and how she intends to prove the connection between her experiences and the grounds set out in her Application. The applicant indicated that her claim against the respondents was based on disability. The applicant was permitted considerable time to explain her work history and medical experiences in Ontario and other parts of Canada and the United States going back to 1999. As she was telling her story, it became apparent that the applicant’s allegations against the respondents are bound up in her mind with some very unfortunate personal experiences. For privacy reasons and because the evidence was not relevant to the issues, as explained below, I do not refer to those submissions in any detail.

8The applicant is a nurse. She alleges discrimination in relation to a hearing conducted by the Fitness to Practise Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) which was triggered by concerns raised by the applicant’s employer. The individual respondents are staff of the College, members of the Panel or counsel. The allegations against the members of the Panel have no reasonable prospect of success due to the doctrine of adjudicative immunity; see for example, Cartier v. Nairn 2009 HRTO 2208. Similarly, the allegations against the individually named opposing counsel cannot be sustained as the HRTO has stated that the relationship between a lawyer and opposing counsel is not covered by the Code, see Belso v. York Region Police, 2009 HRTO 757.

9The focus of the applicant’s allegations against the College appear to relate to the conduct and outcome of the hearing. The Panel held a hearing on June 22, 2009 and August 19, 2009. The applicant did not attend on either date. The Panel issued a decision on September 4, 2009 suspending the applicant’s certificate of registration. The suspension was based on a finding that the applicant was incapacitated as defined in s. 1(1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32 as amended. The decision of the Panel was based in part on the expert testimony of a doctor who had conducted an assessment of the applicant and rendered a diagnosis of Bi-polar Disorder and an opinion that the applicant was incapacitated. The Panel’s decision also sets out the terms upon which the applicant can apply to have the suspension removed including treatment and monitoring by a psychiatrist for a minimum of 24 months.

10The applicant alleges that her employer reported certain concerns about her conduct to the College, the veracity of which she disputes. The applicant spent considerable time during the hearing taking issue with the allegations made by her employer. The respondent argued that the College had a statutory duty to act on the reports by the employer.

11The applicant alleged that a number of actions taken on the part of the respondents and associated with the hearing process were discriminatory.

12The applicant alleged that she was forced to undergo a medical assessment by someone other than her own physician. She argues that the Panel should have relied exclusively on her own medical professionals in determining whether or not she was incapacitated. In support of her allegations the applicant made reference to a case involving a nurse whose employer reported to the College a number of errors in her administration and documentation of narcotics (Cotton vs. College of Nurses of Ontario, 2008, 26674 (ON SCDC) (“Cotton”).The College alleged that the nurse may have had an addiction to narcotics. The applicant argued that the outcome in Cotton supported her argument that it was discriminatory for the College to insist on her being assessed by anyone other than her own doctors. However, in Cotton the reviewing Court quashed the Board’s decision to order a medical assessment because of the failure of the Board to give reasons, not because the Board was incorrect in ordering a medical assessment.

13The applicant made a number of additional allegations concerning the hearing process. The applicant alleged that she was not offered a meal allowance and could not attend the hearing without it. At the same time, the applicant argued that she was not prepared to go to Toronto because of a fear that she would end up in a psychiatric facility and be subjected to shock treatments. She also alleged that although she was prepared to participate in a hearing by conference call, she was notified the Friday before the Monday hearing date that the issue of her capacity was the subject of the hearing. She also alleged that she was harassed by the Panel when documents were sent repeatedly to her, affecting both her health and school work.

14Essentially, the applicant argues that the College took the employer’s allegations, treated them as if they were true, and made a decision that she was mentally incapacitated because of Bi-polar Disorder. She alleged that the expert who testified at the hearing was simply “rubber stamping” a decision that had already been made at the executive level by the College.

15Without commenting on the veracity of the applicant’s allegations, even if I accepted as true that she was treated unfairly by the College, the applicant was unable to point to evidence which would reasonably be available to her to prove that these experiences arose as a result of discrimination. I note that the issue before the College, whether or not the applicant was incapacitated within the meaning of the Regulated Health Professions Act, 1991 S.O. 1991 c. 18 (“RHPA”) is not the issue before me on this Human Rights Application. The issue before me is whether the Application has no reasonable prospect of success in establishing a violation of the Code has occurred.

16In most cases of this nature, the applicant is required to demonstrate that her allegations amount to a Code violation or point to evidence which establishes a link between the actions of the respondent and the prohibited ground advanced, in this case, disability. The applicant argued that the link in this case is obvious: the decision of the College to investigate her and to find her incapacitated was made directly on the basis that she was diagnosed with Bi-polar Disorder. However, not every decision which is based on disability is discriminatory. There must be evidence available which would demonstrate that the link between the College’s actions and the applicant’s disability is imbued with stereotypes about people living with mental illness.

17The Panel’s mandate is to assess competence to practise. The fact that the decision turns on a finding of mental disability does not mean it is discriminatory. In addition, the decision of the Panel was made pursuant to its authority under the Regulated Health Professions Act, 1991 S.O. 1991 c. 18. The Tribunal does not serve as an avenue of appeal from the decisions of other statutory decision-makers.

18The applicant did not point to any evidence which could suggest a link between the conduct of the respondents and her age or record of offences. The applicant appears to have misunderstood the meaning of record of offences as a record of disciplinary offences at work rather than a conviction for a criminal or provincial offence. These allegations are therefore also dismissed. Accordingly, the Application is dismissed.