McArdle v. St. Joseph’s Health Centre, 2013 HRTO 1241

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John McArdle

Applicant

-and-

St. Joseph’s Health Centre

Respondent

INTERIM DECISION

Adjudicator: Ruth Carey

Date: July 16, 2013

Citation: 2013 HRTO 1241

Indexed as: McArdle v. St. Joseph’s Health Centre

APPEARANCES

John McArdle, Applicant

Renato Fallico, Representative

St. Joseph’s Health Centre, Respondent

Brian D. Mulroney, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of gender expression, creed, and reprisal.

2Pursuant to a Case Assessment Direction (“CAD”) issued on April 10, 2013, the Tribunal scheduled this Application for a summary hearing.

3The summary hearing convened by way of teleconference on July 11, 2013.

4For the reasons set out below: the summary hearing is adjourned to a date to be set by the Registrar; and Renato Fallico is not permitted to participate as the applicant’s representative when the hearing reconvenes.

BACKGROUND

5This is the second of two Applications to the Tribunal that involve the same sequence of events.

6The first Application was filed by Mr. Fallico. That Application was dismissed in Fallico v. St. Joseph’s Health Centre, 2013 HRTO 1192, issued on July 9, 2013, which says at paras. 8-11:

8The applicant was employed by the respondent as a chaplain from June 2001 until April 26, 2012. The respondent is a 371-bed Roman Catholic community teaching hospital.

9The respondent employs chaplains from several different faith backgrounds to minister to the needs of its diverse patient population. The applicant is Roman Catholic and ministered to Roman Catholic patients. Father Bohdan Winniki (“Father Bohdan”) supervises the Roman Catholic chaplains at the respondent.

10On April 26, 2012, the applicant’s employment was terminated. The respondent asserts the applicant’s employment was terminated because he disclosed confidential information about a patient’s desire to end his life to three individuals not employed by the respondent and outside of the patient’s circle of care (“third parties”). The applicant argues that he had a moral, legal and ethical obligation to disclose this information under his Catholic faith.

11The applicant admits that he told one of the patient’s support people and Father Bohdan that the patient had told him that he wanted to end his life by discontinuing treatment. He states he made the disclosure to Father Bohdan, a health care professional, and the patient’s support person, to save the patient’s life. He denies disclosing the information more broadly as asserted by the respondent. The applicant does not dispute that the support person is not employed by the respondent and is not a regulated health professional.

7This second Application involves the same events and the same respondent, but the applicant is the patient whose personal health information was apparently disclosed by Mr. Fallico. In this Application the applicant alleges that Father Bohdan did not investigate the incident properly, and that Mr. Fallico’s employment should not have been terminated because he was not the one who improperly disclosed the applicant’s personal health information. According to the Application, the applicant believes that it was one of the respondent’s nurses that made the improper disclosure.

8In response to my question, Mr. Fallico conceded that he filled in the Application form on the applicant’s behalf. The narrative attached to the Application is in a different handwriting and presumably was written by the applicant himself.

The Adjournment Request

9At the start of the summary hearing, Mr. Fallico stated that the applicant was in hospital and too ill to attend the summary hearing but wanted to participate, so he asked Mr. Fallico to act as his representative to request an adjournment. The respondent objected to the request and asked that the Application be dismissed as abandoned.

10According to the Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments”, requests for adjournments made outside the ordinary time limit for rescheduling requests, as this one is, will only be granted in extraordinary circumstances.

11If it is true that the applicant is in hospital and too ill to participate, that would constitute extraordinary circumstances under the Tribunal’s Practice Direction. As a result, the request for adjournment shall be granted. The Registrar shall reschedule the summary hearing and issue a new Notice of Summary Hearing.

Mr. Fallico as a Representative

12The respondent objects to Mr. Fallico acting as the applicant’s representative as he is not licensed by the Law Society of Upper Canada to act as a representative, is in a conflict of interest, and the applicant has not authorised Mr. Fallico to act on his behalf in writing.

13Mr. Fallico did not dispute that he is not licensed to act as a representative by the Law Society of Upper Canada. He concedes that he does not have written authorisation from the applicant appointing him as a representative, but states he could get such authorisation if needed. Although Mr. Fallico asserts that there is no actual conflict of interest, he understands that there may be an appearance of conflict on the face of the record.

14I am not prepared to disqualify Mr. Fallico as the applicant’s representative because he is a lay person without written authorisation. However, he shall not be permitted to act as the applicant’s representative in future proceedings involving this Application as there is a real possibility of conflict of interest arising from the face of the record as between Mr. Fallico and the applicant.

15Pursuant to section 30(1)5 of By-Law 4 passed pursuant to the Law Society Act, R.S.O. 1990, c. L.8, an unpaid friend of the applicant can act as his representative before a court or at a tribunal as long as that person does not do so more than three times a year. The exemptions found in By-Law 4 from the Law Society’s licensing requirement are referenced in the Tribunal’s Policy on Representation before the HRTO, and its Rules of Practice which say:

1.14. Parties may be self-represented, represented by a person licensed by the Law Society of Upper Canada or by a person authorized to provide legal services in accordance with the Law Society Act and its regulations and by-laws.

16Having a friend as a representative can be very helpful for vulnerable applicants. As stated by the Tribunal in Hansen v. Toronto (City), 2010 HRTO 13 (at para. 14): “Permitting representation by those who are willing to give their time to assist friends or neighbours is one way of supporting access to justice.” As a stated goal of the Rules is to provide a fair, open and accessible process to deal with applications to the Tribunal, it would not be appropriate to bar Mr. Fallico as the applicant’s representative on the basis that he is not a trained legal professional.

17The Tribunal’s Rules do not state that an applicant must provide written authorisation to a representative before he or she can appear. The respondent’s concern in this regard appears to be the possibility that Mr. Fallico is the actual driving force behind this Application and not the applicant. As Mr. Fallico will not be permitted to act as the applicant’s representative for other reasons, and the Application is adjourned to another date, it is unnecessary to require the applicant to provide written authorisation naming Mr. Fallico as his representative.

18With respect to the issue of conflict of interest, there is a material factual conflict between the allegations in this Application and Mr. Fallico’s apparent admission at the summary hearing in Fallico v. St. Joseph’s Health Centre. The Application asserts that Mr. Fallico was wrongfully terminated from employment because it was not true that he disclosed the applicant’s personal health information to others. However, the Tribunal’s Decision in Fallico v. St. Joseph’s Health Centre indicates Mr. Fallico acknowledges that he did. Given that admission, it would not be unreasonable for the applicant to seek to amend this Application to name Mr. Fallico as a personal respondent, which would place Mr. Fallico and the applicant in a direct conflict of interest.

19A party should not be deprived of his or her representative of choice without a compelling reason and the applicant may be prepared to waive the conflict of interest in this instance. The case law suggests that “when the public interest is involved, the appearance of impropriety overrides any private interest claimed by waiver”. (See: Goldberg v. Goldberg, 1982 CanLII 3235 (ON CA), [1982] O.J. No. 1412 (Div.Ct.), at para. 7.) Given the particular circumstances of the conflict of interest here, the public interest component of claims under the Code, and the early stage of this proceeding, I am not prepared to exercise my discretion and permit the applicant to waive the conflict even if he were inclined to do so.

20Based on all of the above, if the applicant wishes to be represented on this Application, he must choose someone other than Mr. Fallico to act on his behalf.

DECISION

21The Tribunal makes the following orders:

a. The summary hearing is adjourned to a half-day hearing by teleconference on a date to be set by the Registrar;

b. If the applicant wishes to be represented during the course of the hearing of this Application, he shall choose someone other than Renato Fallico to act as his representative and shall notify the Tribunal and the respondent in writing as to the name and contact information of that person no later than ten days prior to the date of the reconvened summary hearing.

22I am not seized.