V.N. v. Bartlett, 2012 HRTO 1947

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

V.N. by her next friend C.L.

Applicant

-and-

Leah Bartlett

Respondent

DECISION

Adjudicator: Mary Truemner

Date: October 15, 2012

Citation: 2012 HRTO 1947

Indexed as: V.N. v. Bartlett

APPEARANCES

V.N., Applicant

C.L., Next Friend

Leah Bartlett, Respondent

Dara Lambe, 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”). It alleges discrimination with respect to services because of disability and describes the applicant, a child with autism, attending the emergency services of a hospital with her mother. The respondent is the paediatrician with whom the emergency room physician consulted by telephone. The respondent deemed it unnecessary to attend the hospital to examine the applicant. The Application alleges that the emergency room physician told the applicant’s mother that the respondent had said that the applicant’s behaviour was likely to be behavioural as opposed to symptomatic of a seizure, and that the respondent had said to the attending physician, “This is what autistic kids do. They scream.” The Application alleges that the emergency room physician said that he was not pleased with his “heated” conversation with the respondent, but could not “override” the respondent’s decision.

2The applicant’s mother believed that the respondent was mistaken about the applicant’s screaming being related to behaviour, and believes that the respondent made her remark and conclusion not to examine the applicant for discriminatory reasons.

3The respondent has requested that the Tribunal dismiss the Application under s. 45.1 of the Code on the basis that the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario (“the Committee”) has already dealt with the substance of the Application by deciding a complaint filed the same day as the Application. A hearing by way of teleconference was held on September 28, 2012 to determine the respondent’s request.

THE COMPLAINT TO THE COMMITTEE

4In the section of the Complaint to the Committee called “Details of Complaint”, the applicant’s mother provided the following answer to the question, “Why are you concerned about the physician’s care, behaviour, etc…. ?”:

November 14th, 2010 I brought [V.N.] to the ER department at RVH in Barrie as she was exhibiting what looked to me like seizure activity. [V.N.] is severely autistic and was continuing to scream non-stop to the point of self-injury due to frustration. She is essentially non-verbal and unable to point or indicate whether she is in pain or what is bothering her. We were seen by Dr. David Bouchey [sic] who examined [V.N.] and believed a paediatrics consult was in order. Upon his returning to the ER room he indicated to me that he contacted the paediatrician on-call Dr. Bartlett and stated to me that he got into a “heated discussion" with her about [V.N.]'s condition. He stated to me that he was unhappy with the results of the conversation and stated to me that Dr. Bartlett indicated to him that she “knew [V.N.]” to which I immediately stated that she did not, and then he stated that Dr. Bartlett stated that she did not believe that these were “seizures” and that “this is what autistic kids do, they scream”.

He indicated to me that we were going to be discharged from hospital and that should I have any further concerns, to come back to the ER immediately.

Dr. Bouchey indicated that he was not happy with this decision. When asked if he could override her decision, he stated that he could not do this.

We left the ER and [V.N.] continued in extreme pain with extreme yelling and self-injurious behaviours which required restraining for the next several days until she responded to Ketorolac and IV Morphine.

THE COMMITTEE’S DECISION

5The Committee’s Decision states:

The Committee carefully reviewed all the information and documentation gathered during the investigation. The Committee examined [C.L.’s] communications about her complaint, Dr. Bartlett’s response and the medical records. The Committee also considered information from Dr. Boushy (emergency room physician), Dr. Kuzik (paediatrician), and Dr. Osswald (paediatrician).

6The Committee determined to take no further action on the applicant’s mother’s complaint for reasons which included the following findings of fact:

• Although it would have been ideal for Dr. Bartlett to attend the ED and assess [the applicant] herself, it was not necessary. [The applicant] was in stable condition and further investigation or treatment was not required that evening.

• Dr. Boushy [the emergency room physician] has indicated that he felt Dr. Bartlett provided adequate advice over the telephone and that he felt the plan for follow-up was reasonable. It is not unusual for physicians to discuss a patient on the phone and come up with an agreed plan of action in this way.

• Dr. Bartlett did contact Dr. Osswald the next day and ensured that follow-up would occur.

POSITION OF THE RESPONDENT

7The respondent argued that the substance of the complaint to the Committee and the substance of the Application are the same. They both allege that the respondent’s refusal to go to the emergency department to assess the applicant was because of the applicant’s autism. The respondent argued that the process followed by the Committee, although strictly a document review, is a process provided for by legislation, and the parties knew the case they had to meet. While not the same process provided by this Tribunal in the adjudication of Applications, it nonetheless appropriately dealt with the Application. Consequently, the respondent argued, the Application should be dismissed under s. 45.1 of the Code.

POSITION OF THE APPLICANT

8The applicant’s mother confirmed that the substance of the Application was that the respondent refused to come to the hospital and assess the applicant. She argued, however, that the reason she filed the Application was to deal with the allegedly discriminatory remark, “This is what autistic kids do. They scream.” Contrarily, she argued, she filed the complaint to the Committee to find out if professional standards were met. She stated that she abandoned her appeal of the Committee’s decision to the Health Professions Appeal and Review Board (the “HPARB”) because she understood that she would not be able to challenge the validity of Dr. Boushy’s statements as found by the Committee even though the Committee made its findings without having allowed her an opportunity to cross-examine Dr. Boushy on his statement to the Committee. According to her understanding of a conversation with an administrator at HPARB, HPARB would also not give her an opportunity to cross-examine him. She wants to do that at the Tribunal, and have the Tribunal make different findings of fact than the Committee’s findings.

ANALYSIS

Section 45.1

9Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

10Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application.”

Was there another “proceeding”?

11Legislation establishes a comprehensive statutory scheme for adjudicating complaints arising from the relationship between patients and physicians in Ontario. Pursuant to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended (“RHPA”), Complaints Committees are established to receive and investigate complaints related to each of the Province’s self-governing health professions, including the medical profession through the College of Physicians and Surgeons of Ontario (“CPSO”). Schedule 2 of the RHPA provides a Procedural Code governing the processes to be followed by the self-governing health professions, including the CPSO’s Complaints Committee. While the applicant’s mother was not satisfied with the procedure used by the Committee, particularly her inability to cross-examine Dr. Boushy, she agrees that she did not file a judicial review of the Committee’s decision.

12The RHPA establishes the HPARB as an adjudicative body with statutory powers of review and appeal. The HPARB has the power to review decisions of the various health professions’ Complaints Committees, but the applicant agrees that she decided not to pursue a review or appeal of the Committee’s decision.

13In British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), the Supreme Court of Canada considered a provision in British Columbia’s human rights legislation which is similar to s. 45.1 of the Code, and the principles set out in that decision apply to s. 45.1. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297).

14At para. 49 of Figliola, the Court stated the following with respect to British Columbia’s Human Rights Tribunal:

To begin, it questioned whether the Review Division’s process met the necessary procedural requirements. This is a classic judicial review question and not one within the mandate of a concurrent decision-maker. While the Tribunal may inquire into whether the parties had notice of the case to be met and were given an opportunity to respond, that does not mean that it can require that the prior process be a procedural mimic of the Tribunal’s own, more elaborate one…

… As long as the complainants had a chance to air their grievances before an authorized decision-maker, the extent to which they received traditional “judicial” procedural trappings should not be the Tribunal’s concern.

15A claim determined by the Committee constitutes a “proceeding” within the meaning of the Code. See Magda v. Jaroszynski, 2010 HRTO 1342. See also College of Nurses v. Trozzi, 2011 ONSC 4614 (“Trozzi”), and Jokstad v. Royal College of Dental Surgeons of Ontario, 2012 HRTO 143, where similar committees were deemed to be “proceedings” within the meaning of the Code. The only remaining issue is whether the substance of the present Application was appropriately dealt with by the Complaints Committee of the CPSO.

Was the substance of the Application “appropriately dealt with”?

16In Figliola, at para. 34, the Court summarized the principles 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; and

• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.

17The Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding. See Robinson v. Spanish (Town), 2009 HRTO 1484.

18The Tribunal may dismiss an application under s. 45.1 even if the other proceeding found to have dealt appropriately with the allegations did not specifically make a finding of a Code violation. See Gidopoulos v. Weston Bakeries, 2011 HRTO 1925.

19As stated by the Tribunal in Paterno v. Salvation Army, 2011 HRTO 2298, at para. 25:

This Tribunal has emphasized throughout its jurisprudence on s. 45.1 that in applying the section, the analysis should not be technical, but should focus on the goals of preventing relitigation of the substance of issues decided elsewhere. Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the Application must be dismissed. For example, in Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal found that the analysis applied by the Special Education Tribunal in an appeal under the Education Act, R.S.O. 1990, c. E.2, as amended, appropriately dealt with issues under the Code, because the essence of the analysis was the same even if the Code was not directly applied. In Qiu v. Neilson, 2009 HRTO 2187, the Tribunal found that where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed even if the other proceeding did not specifically apply the Code. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that where a party settled a previous proceeding that included the essence of the human rights matter, the Application should be dismissed under s. 45.1. In Cunningham v. CUPE 4400, 2011 HRTO 658, a complainant who narrowed the allegations in the previous proceeding to exclude human rights issues was precluded from later pursuing the human rights issues at the Tribunal. If there is a legal or factual finding in a previous proceeding, whether explicit or implicit, that makes it impossible for an application or part of an application to succeed, the application or part must be dismissed.

20The facts and issues in the complaint dealt with by the Committee substantially overlap with those which form the basis of the Application. Essentially, both the complaint and the Application allege that the respondent failed to provide services for the applicant because the respondent made a generalization that autistic children may scream for behavioural reasons, not physical reasons. While the applicant’s mother may have had different reasons for filing the complaint than for filing the Application, I find that the substance of the Application was dealt with by the Committee in its processing of the complaint.

21Moreover, in order for the Application to succeed, the applicant would have to establish that Dr. Boushy had a conversation with the respondent that the Committee found he did not have. It would be impossible for the Application before the Tribunal to succeed unless the Tribunal were to make contrary findings. Relitigating and making contrary findings, as explained above in reference to the Figliola decision, is a situation to be avoided. The applicant is unhappy with the Committee’s decision, but it is not for the Tribunal to comment on whether the Committee made the correct decision. As stated in Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443, at para. 25:

The Supreme Court of Canada’s decision in Figliola provides guidance as to the interpretation of “appropriately dealt with” as it appears in s. 45.1. The [Supreme Court of Canada in Figliola, above] makes clear that the Tribunal’s role is not to sit in appeal of other decision-makers in their determination of human rights issues. Nor is it appropriate for the Tribunal to use s. 45.1 as a vehicle for a collateral attack on the merits of another decision-making process; the appropriate route for challenging another decision is through the appeal or judicial review routes available in the other decision-making process.

22The Committee did not articulate its findings as a dismissal of an allegation of human rights discrimination; however, because it dealt with the same facts and issues as those which form the basis of the Application, and because its findings make it impossible for the Application to be successful, I find that the Committee appropriately dealt with the substance of the Application and it is dismissed pursuant to s. 45.1 of the Code. The hearing that had been scheduled for November 2, 2012, has consequently been cancelled.

ORDER

23The Application is dismissed.