Conroy v. The College of Physicians and Surgeons of Ontario, 2012 HRTO 2122

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Conroy

Applicant

-and-

The College of Physicians and Surgeons of Ontario

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: November 8, 2012

Citation: 2012 HRTO 2122

Indexed as: Conroy v. The College of Physicians and Surgeons of Ontario

APPEARANCES

David Conroy, Applicant

Self-represented

The College of Physicians and Surgeons of Ontario, Respondent

Michelle Gibbs, Counsel

1This decision deals with two Applications filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), Tribunal file numbers 2009-04221-I (the "First Application") and 2011-08626-I (the "Second Application"). The First Application, filed on December 1, 2009, alleges discrimination with respect to membership in a vocational association because of race, ancestry and disability. The Second Application, filed on March 15, 2011, alleges discrimination with respect to membership in a vocational association because of race, ancestry, disability (and failure to accommodate disability) and reprisal. The Applicant describes himself as an aboriginal person.

2By Case Assessment Direction dated October 31, 2011, the Tribunal granted the respondent's Request for Summary Hearing in the First Application and also ordered a summary hearing in the Second Application. The Tribunal ordered a consolidated hearing to determine whether the Applications should be dismissed because there is no reasonable prospect they will succeed. The hearing took place by teleconference on March 23, 2012.

3As will be seen below, the applicant commenced a civil action against the respondent based on the same factual foundation and alleging violations of the applicant's rights under the Code and equality rights under the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982 (the "Charter"). Consequently, the parties made detailed submissions regarding whether the Tribunal should dismiss the Applications, pursuant to section 45.1 of the Code, because another proceeding has appropriately dealt with the substance of the Applications. The parties did not address whether the Applications were barred, pursuant to section 34(11) of the Code, which states as follows:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

4By Case Assessment Direction dated June 27, 2012, the Tribunal invited the parties to make written submission addressing the following questions:

1. Must the Tribunal first determine whether section 34(11) applies to the Application before considering other arguments regarding whether the Application may proceed?

2. Should the Application be dismissed pursuant to section 34(11)?

The respondent and applicant filed their written submissions regarding these questions on June 28, 2012 and July 6, 2012, respectively.

BACKGROUND

5The applicant is a physician and describes himself as a person of aboriginal ancestry. The respondent is the regulatory body for physicians in the Province of Ontario.

6In January and February of 2009, the respondent received information that suggested the applicant may be incapacitated, as defined in section 1(1) of the Health Professions Procedural Code ("HPPC"), which is schedule 2 to the Regulated Health Professionals Act, 1991 ("RHPA"). The respondent conducted a preliminary investigation, which disclosed that the applicant had conducted research on himself and his cat (which included taking cocaine and feeding it to his cat) regarding a microorganism he believed he had discovered. On April 14, 2009, the respondent's Executive Committee formed a Board of Inquiry to inquire into whether the applicant was incapacitated. The respondent notified the applicant of the Board of Inquiry (the "Board"). The applicant met with the Board and was required to meet with an addictions specialist and a psychiatrist, both of whom formed the opinion that the applicant's condition exposed patients to risk of harm.

7The Board prepared a report and provided a copy to the applicant, who was entitled to make submissions regarding the report. Following its review of the report, the Executive Committee referred the issue of the applicant's capacity to the Fitness to Practice Committee on or about August 14, 2009. Also on August 14, 2009, however, the applicant's Certificate of Registration (i.e., his license to practise medicine) was suspended because he did not submit the 2009 Annual Renewal form, despite repeated reminders from the respondent. As a result, the applicant was no longer authorized to practise medicine.

8The applicant applied for registration on September 24, 2009. The Registrar referred his application to the Registration Committee to determine whether the applicant could meet the non-exemptible requirements of section 2 of Ontario Regulation 865/93, under the Medicine Act. In light of the suspension of the applicant's certificate and the referral to the Registration Committee, the Executive Committee withdrew the referral to the Fitness to Practice Committee.

9The Registration Committee considered the matter of the applicant's registration on February 5, 2010, including submissions from the applicant. On February 8, 2010, the respondent informed the applicant that the committee would direct the Registrar not to issue him a certificate of registration. The respondent released the committee's Order with Reasons on April 9, 2010. The Registration Committee was not satisfied that the applicant was fit to practise medicine at that time. The committee based this conclusion on the applicant's history of alcohol and illicit drug use, the inability to rule out continued alcohol and drug abuse, the assessment that he suffered from delusions, violent ideation expressed in a book he wrote and the lack of any medical information indicating that he was fit to practise. The applicant was entitled to a review of the decision by the Health Professions Appeal and Review Board ("HPARB") but he did not request such a review. The Order with Reasons informed the applicant that he was not barred from applying for a certificate at a later date and the committee would consider his application when he could present proof that he is fit to practise medicine from an acceptable source. On June 29, 2010, the applicant filed another application for registration.

10In the First Application, the applicant stated that the psychiatric and substance abuse assessments the respondent relied upon included inquiries regarding his childhood and relatives and that this information was used to diagnose him as mentally incapacitated. The applicant asserts that this amounts to systemic discrimination because aboriginal people endure a greater burden of socioeconomic risk factors used by psychiatrists to diagnose people with mental illnesses. The applicant also stated that he admitted using cocaine and marijuana in the past as an act of good faith when he met with the Board of Inquiry. This information was used to diagnose him as being addicted to cocaine and marijuana, although there was no current evidence that he used these drugs. On his own initiative, the applicant underwent drug testing to establish his abstinence, which did not detect cocaine. The respondent declined his offer to settle the issue of drug use with random drug testing.

11In the Second Application, the applicant stated that he denied the validity of the Registration Committee's reasons, which concluded that he suffered from delusional disorder and drug addiction. The applicant asserted that these conclusions were the result of racial discrimination and discrimination against people with alleged mental disabilities. The applicant alleged that he requested the respondent to confirm the diagnoses, confirm objective bona fide occupational requirements or qualifications and accommodate his alleged disabilities. The applicant states the respondent refused these requests and that the reason for refusing accommodation was in part because he filed an Application with the Tribunal (i.e., the First Application).

12The applicant filed a Statement of Claim on November 19, 2009 commencing an Action against the respondent, amongst others. The applicant filed an Amended Statement of Claim (the "Amended Claim") on May 28, 2010. In the prayer for relief, the applicant claimed damages for "...the discriminatory...referral to the Fitness to Practice Committee" and "...the... biased... referral of his application for a certificate of registration to the Registration Committee and for violations of his rights to ... equality". The facts pleaded included:

• The Board's report was biased and discriminatory, as were the assessments of the psychiatrist and the addictions specialist;
• The referral to the Registration Committee was based on the discriminatory inquiry and referral to the Fitness to Practice Committee;
• The referral to the Fitness to Practice Committee was because of discrimination based on the perception that he suffered from the mental illness of delusional parasitosis; and,
• The respondent did not accommodate his alleged disability or determine whether the absence of the alleged disability is a bona fide occupational requirement.

13The applicant's Amended Reply and Factum included the following allegations:

• The decision of the Registration Committee was based on discriminatory and biased materials;
• The respondent discriminated against him because of perceived mental illness;
• The respondent refused to accommodate his perceived disability of delusional disorder;
• The respondent's complaints process was biased and discriminatory;
• The referrals to the Fitness to Practice Committee and the Registration Committee were based on a biased and discriminatory assessment process;
• The respondent's assessment process of referrals were biased and discriminatory against former drug users;
• The absence of delusional disorder is not a bona fide occupational requirement or qualification.

14The respondent brought a motion to the Ontario Superior Court of Justice under Rules 20 and 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to strike out the Amended Claim and for summary judgement dismissing the Action. The motion was heard on October 28, 2010 and the Court allowed the motion and dismissed the Action, 2011 ONSC 324. At paragraph 45 of the decision, the Court summarized the Amended Claim as follows:

Dr. Conroy holds the College responsible for his losses. In summary he states:

• A biased process led to Dr. Conroy being diagnosed with a mental incapacity, delusional disorder and a drug addiction;
• The Executive Committee's referral to the FTPC, publication of this referral on the College's website and the College's referral of Dr. Conroy's new application for licensing to the Registration were all unfair, unlawful, in bad faith, unjust, discriminatory, biased, and unconstitutional (in violation of Dr. Conroy's rights under s. 2(b), 7 and 15(1) of the Charter); and
• The publication of the referral to FTPC was unlawful and a violation of Dr. Conroy's right to privacy.

15The Court recited the facts as pleaded in the Amended Claim regarding the Rule 21 motion. The Court found the Amended Claim disclosed no reasonable cause of action pursuant to Rule 21.01(1)(b). The basis for this conclusion was sections 36(3) and section 38 of the RHPA. Section 38 of the RHPA states as follows:

No action or other proceeding for damages shall be instituted against the Crown, the Minister, a College supervisor appointed under section 5.0.1 or his or her staff, an employee of the Crown, the Advisory Council, a College, a Council, or a member, officer, employee, agent or appointee of the Advisory Council, a College, a Council, a committee of a Council or a panel of a committee of a Council for an act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act, a health profession Act, the Drug and Pharmacies Regulation Act or a regulation or a by-law under those Acts or for any neglect or default in the performance or exercise in good faith of the duty or power.

The Court found that the applicant had not pleaded bad faith properly, as the Amended Claim did not provide full particulars as required by Rule 25.06(8).

16The Court also set out a detailed chronological review of the evidence regarding the motion for summary judgement, including the applicant's illicit drug use while practising medicine. The Court also set out the history of the respondent's referral to the Fitness to Practice and Registration Committees and the Registration Committee's order directing the Registrar to refuse to issue a certificate of registration to the applicant. Based on the evidence, the Court concluded that the respondent at all times acted in good faith.

17The applicant appealed the decision to the Court of Appeal for Ontario. The Court of Appeal agreed with the motion judge that the Action was properly dismissed under Rule 21 and did not address the Rule 20 analysis. The Court of Appeal also noted that the motion judge did not address the applicant's Charter claims separately, but found that it followed from her analysis of the respondent's conduct that the Charter claims would not succeed. The respondent's conduct was consistent with its statutory mandate and there was nothing to support the Charter claims. Leave to appeal to the Supreme Court of Canada was denied.

SUBMISSIONS

The Respondent

18The respondent submitted that it is appropriate for the Tribunal to first determine whether section 34(11) applies to this Application before addressing the other issues involved in this matter. The respondent submitted that the Tribunal should dismiss the Application, pursuant to section 34(11). In the alternative, the respondent submitted that the Tribunal should dismiss the Application based on the arguments it advanced at the summary hearing.

19The respondent advanced three arguments at the hearing in support of its position that the Applications should be dismissed, as follows:

1. The substance of the Applications were appropriately dealt with by the Courts and respondent's Registration Committee;
2. The Superior Court's decision that the respondent acted in good faith bars any civil action for damages; and,
3. The decision of the Registration Committee is not a "service" and is protected by judicial immunity.

The respondent made detailed submissions regarding each of these issues. However, since I have found that the Application is barred by section 34(11), I have recorded only the respondent's submissions that pertain to the applicability of section 34(11) with the exception of submissions related to reprisal.

Section 34(11)

20The respondent submitted that the motion judge's decision arose out of the same facts as the Applications, i.e., the process by which the respondent inquired into the applicant's capacity to practise medicine and the Registration Committee's eventual decision to deny him a certificate of registration. The respondent submitted the applicant's civil action against the respondent included claims of discrimination, failure to accommodate disability and violation of his right to equality under section 15 of the Charter. The respondent noted the many references to such allegations in the Amended Claim and the other material the applicant filed in Court. Accordingly, the respondent submitted that the applicant's civil action and the Applications intersect in terms of both the factual chronology of events and the nature of the alleged violations of the Code.

21The respondent therefore submitted that the Court finally determined the issue of whether the applicant's rights have been infringed and all rights of appeal have been exhausted. The respondent acknowledged that the applicant did not specifically plead section 46.1 of the Code. However, the respondent submitted that the Tribunal has not required section 46.1 to be pleaded for section 34(11) to apply. In this regard, the respondent referred to the Tribunal's decision in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, in which the Tribunal concluded that to find that section 34(11) only applies if section 46.1 is specifically pleaded in a civil action would be an overly technical interpretation that would defeat the purpose of section 34(11). The respondent submitted that the Application is barred pursuant to section 34(11)(b).

Reprisal

22The respondent noted that the applicant's reprisal claim arose out of correspondence between the parties regarding the applicant's application for registration in June 2010. In that correspondence, the applicant posed a number of questions regarding the steps he had to take to meet the Registration Committee's requirements. The respondent submitted the applicant's questions challenged the Registration Committee's decision without appealing to HPARB. The respondent answered the questions, but noted that it did not wish to be drawn into a debate regarding matters before the Tribunal or the Courts. The respondent submitted that it made no threat or retaliation and that defending a position in a proceeding does not amount to a reprisal.

The Applicant

23The applicant also made detailed submissions regarding the three arguments the respondent advanced at the summary hearing. Given my conclusion that section 34(11)(b) bars the Applications, I have included only the applicant's submissions regarding the applicability of section 34(11).

Section 34(11)

24The applicant also submitted that the Tribunal must first determine whether section 34(11) applies to the Application. The applicant submitted, however, that section 34(11) does not bar the Application.

25The applicant noted that section 34(11)(a) refers to a civil proceeding in which the person is seeking an order under section 46.1 of the Code. The applicant contended that his civil claim contains no reference to the Code whatsoever.

26The applicant submitted that his claims before the Court were not the same as his Applications to the Tribunal. The Applicant stated that the First Application concerned the respondent's refusal to renew his certificate in August 2009 and the allegedly illegal referral to the Registration Committee. The First Application alleges discrimination because of race, ancestry and disability (drug use). The Second Application concerns the Registration Committee's decision to deny him a certificate of registration and alleges that the respondent did not assess whether the absence of a delusional disorder was a bona fide occupational requirement and failed to accommodate his disabilities. The applicant submitted that the claims of discrimination set out in the Amended Claim were in respect of delusional disorder and the respondent's failure to accommodate that disorder and did not assert discrimination because of race or drug use. Accordingly, the applicant submitted that the Court did not finally decide whether his rights were infringed, as alleged in the Application.

27The applicant argued that claims for discrimination under the Code are distinct from claims under the Charter. In that regard, the applicant pointed to the Supreme Court of Canada's decision in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, in which the Court commented, at paragraphs 34 to 38, on the distinction between the primacy provision in the Code and section 52 of the Constitution Act, 1982, which sets out the supremacy of the Constitution. Accordingly, the applicant submitted that the motion Judge's reasons for dismissing his claims for discrimination under section 15(1) of the Charter do not apply to his claims for discrimination under the Code. The applicant also submitted that the decision to dismiss his civil action was based on the immunity provided to the respondent by sections 36(8) and 38 of the RHPA. The applicant submitted that these immunity provisions do not apply to the Applications because section 47(2) of the Code establishes the primacy of the Code over other legislation. As a result, the applicant argued that the legal basis for dismissing his Charter claims do not apply to this Application.

28In reply during the summary hearing, the respondent made submissions regarding the applicability of section 45.1 of the Code, i.e., whether the substance of the Applications were appropriately dealt with by another proceeding. I find these submissions are also pertinent to the applicability of section 34(11). The respondent submitted that the distinction the applicant attempts to make between different grounds of discrimination is artificial. In any event, the respondent submitted that the grounds asserted in the Application were before the Court. The Court discussed the applicant's drug use and the applicant's material contained allegations of discrimination because of drug use. The respondent noted that the allegations of race discrimination contained in the Applications arise out of the medical assessments required by the Board of Inquiry, which concluded that he appeared to suffer from delusions and substance abuse. In the Amended Claim, the applicant states that the diagnoses were wrong and that the assessments were discriminatory. The respondent submitted that it is disingenuous for the applicant to separate the diagnoses of drug use and delusional disorder in this way. The respondent argued that the applicant's pursuit of the Applications amounts to a collateral attack of the Court's decision and the applicant could have and should have made all of his discrimination claims to the Court. Accordingly, the respondent submitted that to permit him to make the same claims in different forums only because the grounds of discrimination are said to be different would amount to an abuse of process.

ANALYSIS AND DECISION

29As noted above, Section 34(11) provides:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

Section 46.1 reads as follows:

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the Court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

30If an application falls within the circumstances described in section 34(11), the Tribunal may not proceed with the application because the language in section 34(11) is a mandatory bar. Accordingly, I find that I must first determine whether section 34(11) applies to this Application, as the parties acknowledged.

31The purpose of section 34(11) is to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paragraphs 10-11, the Tribunal described the purpose of section 34(11) and concluded that a claim need not specifically plead section 46.1 of the Code for section 34(11) to apply:

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant's ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant's decision to raise the Code and seek remedies for its violation in a court action.

To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.

32In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, the Tribunal stated as follows:

If a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.

33There is no question, in my view, that, excepting the allegation of reprisal in the Second Application, the Applications arise out of the same facts that provided the basis for the Court proceeding, i.e., the respondent's inquiry into the applicant's capacity to practise medicine, the referrals to the Fitness to Practice and Registration Committees and the Registration Committee's ultimate decision. In my view, the legal issues before the Court were also the same as in the Applications, again with the exception of the reprisal allegation. There is no dispute that the applicant alleged the respondent discriminated against him and failed to accommodate his disabilities in the Amended Claim, Amended Reply and his motion materials. The Amended Claim contains several undifferentiated allegations of discrimination, but also allegations that specify discrimination because of the disability of delusional disorder and the failure to accommodate this disability. None of the materials the applicant filed in Court contain allegations of discrimination because of race or ancestry. The applicant's Factum alleges discrimination because of disability related to drug addiction and I do not accept the applicant's position that he merely informed the Court that he filed an Application to the Tribunal on this issue. Regardless, parsing the grounds of discrimination as the applicant argues does not affect the section 34(11) analysis.

34The Court was presented with the same facts that the Applications are based upon as well as the applicant's legal argument that these facts established discrimination contrary to the Code. The applicant did not refer to the Code in his civil claim, but the Tribunal's jurisprudence is clear that this does not preclude the application of section 34(11). The Courts dismissed the claim on other grounds, but it is clear from the motion judge's analysis that she considered the respondent to have acted appropriately within its statutory mandate (which the Court of Appeal confirmed) and that the discrimination claims had no merit. The applicant argues that the Tribunal may proceed to re-hear these facts because some of the prohibited grounds of discrimination alleged in the Applications are different than those alleged in his civil action. This is precisely the sort of duplicative litigation section 34(11) is intended to prevent. Further, for the applicant to succeed, the Tribunal would have to make findings contradicting the Court's conclusions, in effect overruling the Court. In my view, the Court's decision finally determined the issue of whether the respondent discriminated against the applicant and failed to accommodate him, contrary to the Code; therefore, the Application must be dismissed pursuant to section 34(11)(b).

35It follows from this conclusion that I found the Supreme Court of Canada's decision in Tranchemontagne is of no assistance to the applicant. In Tranchemontagne, the respondent argued that the Social Benefits Tribunal ("SBT") did not have jurisdiction to apply the Code because section 67(2) of the Ontario Works Act, 1997, S.O. 1997 precludes the SBT from determining the constitutional validity of a provision or regulation and cannot determine the legislative authority for making a regulation. The Court rejected this argument because it found that determining whether a legislative provision is constitutional is a different exercise than determining whether such a provision is consistent with the Code; therefore, the exclusion of the authority to consider constitutional issues does not imply the inability to apply the Code. The Court did not consider whether discrimination under section 15(1) of the Charter is somehow different than under the Code.

36In fact, in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, a case dealing with equality rights under section 15(1) of the Charter, the Court set out the definition of discrimination that is widely considered and applied by the Tribunal in applying the Code as follows (at pages 174-75):

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

The Court went on to say that, at page 176, "In general, it may be said that the principles which have been applied under the Human Rights Acts are equally applicable in considering questions of discrimination under 15(1)". Accordingly claims of discrimination under section 15(1) of the Charter will often also amount to claims of discrimination under the Code. In his civil claim, the applicant asserted violations of his equality rights under section 15(1) of the Charter that he attributed to differential treatment because of disability, a prohibited ground of discrimination under the Code. The applicant's claims in Court, which included a claim under section 15(1) of Charter, are the same claims that he is seeking to make in these Applications before the Tribunal.

Reasonable Prospect of Success

37In the Second Application, the applicant alleges that the respondent refused his request for accommodation. The applicant states that this refusal amounted to a reprisal because it was based in part on his previous Application to the Tribunal (i.e., the First Application). These incidents leading to these allegations occurred after the Amended Claim was filed and therefore were not before the Court and are not subject to dismissal pursuant to section 41.5 or as an abuse of process. Section 38 of the RHPA would not bar the reprisal allegation in its entirety, since the applicant also seeks non-monetary remedies. The allegations also do not arise out of the Registration Committee's decision; therefore, the doctrine of judicial immunity does not apply. The question remains, however, whether this allegation should be dismissed because it has no reasonable prospect of success.

38In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraphs 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing in determining whether an Application, or part of it, has a reasonable prospect of success:

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.

39The Second Application does not specify what accommodation the applicant requested and the correspondence, if any, refusing his accommodation in October 2010 has not been filed with the Tribunal by either party. The respondent filed some correspondence related to the applicant's accommodation requests. Based on these documents, it appears that the applicant's request for accommodation is contained in an e-mail message to the respondent, dated June 24, 2010, and the respondent replied to the applicant in a letter dated June 29, 2010. In summary, the applicant requested the respondent to revisit the diagnoses of delusions and drug addiction, determine whether absence of delusions is a bona fide occupational requirement, to protect his assets and income until the necessary inquiries were made and to compensate him for lost income and the loss of his clinic if he was reinstated or if his drug tests were negative. As noted above, the respondent made submissions regarding the issue of reprisal to the effect that the accommodation requested effectively sought reversal of the Registration Committee's decision without proceeding to HPARB and that the respondent declined to debate an issue that was in dispute before the Tribunal. The applicant made no submissions on the issue of reprisal.

40Section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

41A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant (See: Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34). The applicant, however, made no submissions regarding allegations of reprisal and pointed to no evidence that could support the allegation that the respondent committed a reprisal against the applicant. The allegation therefore amounts to a bare assertion and has no reasonable prospect of success.

42The correspondence provided by the respondent also supports the conclusion that the reprisal allegation has no reasonable prospect of success. The correspondence indicates that the applicant sought to revisit the Registration Committee's findings and financial compensation. The respondent replied by informing the applicant that the avenue for challenging the Registration Committee's decision was to seek a review by HPARB. The correspondence also indicates that the respondent declined to respond to the applicant's inquiry regarding the application of the respondent's human rights policy to his case because this was an issue in his Application to the Tribunal. The respondent also stated that the applicant's requests for protection of income / assets and compensation for lost income were the subject matter of his lawsuits before the Superior Court of Justice. Consequently, the respondent would not address these issues in the context of any further application for registration or request for accommodation he may make as part of the application process.

43Granting the applicant's requests would have amounted to capitulation, not accommodation. All of the issues raised in his requests were before the Court or the Tribunal. In my view, informing the applicant that the respondent would deal with the issues in the appropriate forum, rather than the registration process, cannot amount to retaliation or the threat of retaliation; therefore, the reprisal allegation has no reasonable prospect of success.

ORDER

44The Applications are dismissed.