Agila v. University of Ottawa, 2013 HRTO 1317

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nizar Agila

Applicant

-and-

University of Ottawa and Eve Tsai

Respondents

A N D B E T W E E N:

Nizar Agila

Applicant

-and-

Ottawa Hospital

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 29, 2013

Citation: 2013 HRTO 1317

Indexed as: Agila v. University of Ottawa

APPEARANCES

Nizar Agila, Applicant ) Paul Champ, Counsel

University of Ottawa, Respondent ) Karen Jensen, Counsel

The Ottawa Hospital, Respondent ) Andre Champagne, Counsel

Eve Tsai, Respondent ) Denyse Boulet, Counsel

BACKGROUND

1The applicant is a doctor from Libya and an International Medical Graduate in Canada. In October 2006, the applicant was accepted into the Post-Graduate Neurosurgery Residency Program with the Faculty of Medicine at the University of Ottawa (“University”).

2The Post-Graduate Neurosurgery Residency Program (“program”) involves six years of specialized education and clinical training. For the clinical medicine part of the program, the applicant was placed as a resident at The Ottawa Hospital (“Hospital”). The residency placement is governed by a Collective Agreement between the Professional Association of Interns and Residents (“PAIRO”) and the Hospital as a member of the Council of Academic Hospitals of Ontario.

3In February 2009, the applicant was suspended from the University’s program because of alleged concerns regarding professionalism. In July 2009, the University revoked the suspension and permitted the applicant to return to the program subject to certain conditions. However, in August 2009, the Hospital refused to reinstate the applicant’s clinical privileges because of alleged patient safety concerns. In October 2009, PAIRO, on behalf of the applicant, grieved the Hospital’s decision alleging unjust suspension under Article 9 of the Collective Agreement and sought full reinstatement and compensation as a remedy.

4The applicant filed his first Application on April 23, 2010 against the respondent University, as well as four personal respondents, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services, goods and facilities on the basis of race, colour, place of origin, citizenship, and ethnic origin (“University Application”). The applicant alleges that the University and its officials subjected him to unfair discipline and failed to properly address his concerns regarding discriminatory behaviour by a supervising doctor.

5The applicant filed a second Application on August 6, 2010 against the respondent Hospital and various personal respondents under section 34 of the Code alleging discrimination and reprisal with respect to employment on the basis of race, colour, place of origin, citizenship, and ethnic origin (“Hospital Application”). The applicant alleges that he was discriminatorily suspended from his clinical placement.

6In October 2010, the Tribunal granted the applicant’s unopposed request to remove the personal respondents named in the Hospital Application: 2010 HRTO 2148. Around this time, the applicant also informed the Tribunal that the parties had agreed that the respondent Hospital need not file a Response until 30 days after the applicant notified the Tribunal that he wished to receive a Response.

7On November 5, 2010, the applicant advised the Tribunal and the parties that he wished to pursue the second Application and, on that basis, a Response became due from the respondent Hospital within 30 days.

8The respondents to both Applications filed their respective Responses in November and December 2010 denying the allegations. The Hospital asserted that the Application should be dismissed as appropriately dealt with by another legal proceeding, referencing the grievance. The University respondents alleged that some aspects of the Application were untimely and requested that the personal respondents be removed from the Application. By way of Interim Decision 2011 HRTO 2275, the Tribunal removed three of the four personal respondents named in the University Application.

9Both Responses noted that, in May 2010, the applicant and the organizational respondents participated in an arbitration process with Arbitrator William Kaplan regarding the PAIRO grievance. The applicant and each organizational respondent entered into separate settlements dated June 10, 2010. Pursuant to the settlements, the Hospital temporarily lifted its suspension to permit the applicant to complete two further clinical rotations and the University agreed to take steps to facilitate the applicant’s transfer to a different neurosurgery residency program in Canada. The respondents submit that some or all of the substance of the Applications was resolved through these two settlement agreements. The applicant disagrees. The applicant submits that, although he is currently receiving training at another institution, his residency status has not officially been transferred, and therefore the terms of the settlement have not been fulfilled.

PRELIMINARY ISSUES

10In a March 22, 2012 Case Assessment Direction, the Tribunal determined that it would provide the parties with an opportunity to make oral submissions with respect to some of the preliminary issues. Specifically, the Tribunal directed the parties to address whether the Applications should be dismissed pursuant to either section 45.1 of the Code on the basis that the arbitration proceeding appropriately dealt with the substance of the allegations or the doctrine of abuse of process because the applicant provided a release regarding the issues raised in the Applications.

11The parties filed written submissions and a teleconference hearing was held on September 17, 2012.

12The respondents argued that the Applications should be dismissed under section 45.1 and the doctrine of abuse of process because the settlement agreements between the parties addressed the substance of the applicant’s allegations and that a release provided by the applicant was intended to resolve all outstanding issues. The respondents submit that the applicant completed the two rotations at the Hospital in December 2010 and since then has been receiving training at another institution. In the alternative, the respondents submitted that the Applications should be deferred because the arbitration process has not concluded.

13The applicant asserted that the PAIRO grievance pertained only to the issues of the suspension of the clinical duties and that no human rights issues were considered or addressed through the arbitration process. The applicant contends that the University Application cannot be barred by either section 45.1 or the doctrine of abuse of process because the agreement and release are conditional and do not come into effect until and unless the applicant obtains a transfer to another residency program in Canada, which has yet to occur. The applicant further submits that the agreement with the Hospital contains no release and for this reason his second Application must be allowed to proceed.

14At the end of November 2012, the University advised the Tribunal that, pursuant to the settlement agreement, it remained engaged in attempting to transfer the applicant to another residency program and it anticipated imminent confirmation that the applicant would be transferred. The University requested that the Tribunal not proceed with a decision regarding the preliminary issues for approximately three months.

15On April 30, 2013, the University wrote to the Tribunal providing an update as to the applicant’s residency status. The University advised that, although not officially transferred, the applicant was accepted to complete another year of training elsewhere and appears to be progressing successfully through his 4th year of residency.

16By way of a Case Assessment Direction dated May 30, 2013, the Tribunal sought the parties’ submissions regarding the applicant’s status.

17The University argues that, although the applicant has not yet been formally transferred to another university, he is completing many of the prerequisites to write his neurosurgery licensing examinations and this “effectively” constitutes a transfer to another institution. Consequently, the University contends that the requirements of the settlement have been fulfilled and the applicant should not be permitted to proceed with the Applications. In the alternative, the University submits the Applications should be deferred because the agreements remain outstanding and the University continues to make best efforts to facilitate the applicant’s transfer.

18The Hospital supports the University’s position that the Applications should be dismissed as an abuse of process or, alternatively, be held in abeyance until the issues arising out of the agreements are fully resolved.

19The applicant opposes holding the Application in abeyance and requests that the Tribunal proceed with the Applications. The applicant asserts that he has not been formally transferred to another Canadian neurosurgery program and, therefore, the terms of the June 10, 2010 release have not been activated. The applicant contends that a full transfer is not anticipated until sometime in 2014 at the earliest, if a transfer is affected at all. The applicant argues that any further delay is unfair to him because he is likely to leave Canada after completing his residency training.

GRIEVANCE

20The applicant’s grievance, dated October 28, 2009, alleged the Hospital’s unjust suspension of the applicant’s clinical services violated the Collective Agreement between the Hospital and PAIRO. Specifically, the applicant claimed that the Hospital contravened Article 9 of the Collective Agreement, which states that if a resident has been reinstated to the program through a successful University appeal, the resident will be reinstated by the Hospital.

21The Collective Agreement provides that an unjust discipline or dismissal grievance will be processed through arbitration procedures and an arbitrator may settle the grievance by confirming the Hospital’s decision; revoking the discipline or reinstating the resident; or “directing any other arrangement which may be deemed just and equitable”.

22The parties consensually appointed Arbitrator William Kaplan and the grievance was set to proceed at an arbitration hearing on May 28, 2010. At the outset of the hearing the parties engaged in mediation efforts with the assistance of the arbitrator, which ultimately resulted in the two June 10, 2010 agreements.

MINUTES OF SETTLEMENT WITH HOSPITAL

23The respondent Hospital and the applicant, along with PAIRO, entered into Minutes of Settlement resolving the suspension grievance. The settlement designated the applicant’s status as a third year neurosurgery resident and, in order to facilitate the applicant’s reinstatement to a residency at another university (as per the University’s agreement), the Hospital agreed to allow the applicant to undertake two rotations subject to certain restrictions and supervision.

24The Hospital settlement states that the arbitrator shall remain seized of the grievance, which is “adjourned sine die”. The settlement affirms that the arbitrator “shall have jurisdiction to enforce the terms of this Agreement and to resolve any issues arising between [the parties] during the course of this Agreement.” In that regard, the arbitrator retained authority under the Collective Agreement and the parties could request that a hearing be convened with no less than 48 hours’ advance written notice to all parties, in which case the arbitrator may choose to conduct a hearing by such means he deems appropriate.

25The Hospital settlement acknowledges that the parties are “desirous of resolving all outstanding issues” and that the parties to this agreement are also “bound by the agreement” entered into by applicant with the University. The bottom of each page of the Hospital Minutes of Settlement is initialed along with a handwritten notation indicating, “Agreed subject to the Agreement with University”. The Hospital settlement expressly states that upon transfer to another university, pursuant to the successful implementation of the University’s obligations as per its agreement, the applicant and PAIRO “shall irrevocably withdraw” the grievance against the Hospital.

AGREEMENT WITH UNIVERSITY

26Although the University was not a party to the PAIRO grievance, the University participated in the arbitration process as an affected party. The applicant’s Agreement with the University notes that the PAIRO grievance against the Hospital “is being addressed by way of a separate agreement, concurrently with the [University] Agreement.”

27The University Agreement provides that the Faculty of Medicine’s Associate Dean is required to exercise all reasonable efforts to find accredited rotations for the applicant and to effect the applicant’s transfer to a neurosurgery program at a different Canadian university. In exchange for the University agreement to make best efforts to transfer him to a different institution, the applicant agreed to release the University from any liability arising from the applicant’s participation in the neurosurgery residency program.

28If a successful transfer is not achieved, the Agreement stipulates that the University may take whatever steps it deems appropriate, subject to an arbitration clause. According to the arbitration clause, if the applicant disagrees with the University’s attempts to transfer him, the applicant may apply to Arbitrator Kaplan to challenge the Associate Dean’s best efforts to effect a transfer. In that regard, the parties agreed that the arbitrator has the authority under the Arbitration Act of Ontario to enforce the terms of the Agreement. The University and the applicant further agreed “to attempt to resolve any other issues arising between [them] during the course of this Agreement by way of referral to expedited mediation” in a process determined by the arbitrator and that the applicant may have PAIRO present for any such arbitration.

29According to the Agreement, upon confirmation that the applicant has been transferred to another neurosurgery program, the applicant “shall irrevocably release and forever discharge the University and its representatives from any liability whatsoever relating to the residency program or [the applicant’s] tenure in the program.” This settlement also includes a clause recognizing that the University cannot be liable for any breach of its obligations because of circumstances controlled by other universities. This clause also reiterates that the Hospital is not a party to the University Agreement but that Hospital’s Minutes of Settlement “operate concurrently with this Agreement”.

DECISION

30Having carefully considered all of the documents and submissions filed by the parties, I conclude that these Applications should be deferred. It is premature to determine the section 45.1 and abuse of process issues at this stage. As discussed below, the parties’ settlement agreements are contingent on matters that are not yet resolved and, therefore, the settlement process remains on-going and the grievance/arbitration is outstanding. As such, it is appropriate to defer the Applications pending the conclusion of the grievance/arbitration. The respondents’ requests to dismiss pursuant to section 45.1 of the Code and because of abuse of process may be considered upon reactivation. Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

31Some factors that have been identified as relevant in deciding whether to defer an application are: the subject matter of the other proceeding; the nature of the other proceeding; the types of remedies available in the other proceeding; and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

32The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with an application. The Tribunal will generally defer an application where the parties are engaged in other legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts and order remedies that parallel the application. See Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280.

33The parties do not appear to dispute that there are some common factual underpinnings between the applicant’s suspension grievance and the Applications. The grievance and the Applications are predicated on the applicant’s belief that he was treated unfairly and differentially with respect to the respondents’ implementation of certain policies and procedures related to the applicant’s remediation and discipline. I find that, in this regard, there is clear overlap between the facts and issues underlying the suspension grievance and the allegations raised in the Application.

34The grievance was initiated several months before these Applications were launched and by the time the respondents filed their Responses the arbitration had resulted in the settlement agreements. In fact, it appears that Arbitrator Kaplan was already engaged by the parties when these Applications were commenced and that, according to both agreements, he continues to remain seized of the matters. The Hospital’s Minutes of Settlement indicates that the grievance/arbitration before Arbitrator Kaplan is adjourned sine die. The terms of the University settlement expressly recognize that Arbitrator Kaplan has on-going authority to enforce the agreement.

35The settlements provide for a number of contingencies, which appear to be ongoing. Indeed, if the conditions precedent in the settlements do not crystalize, it appears that there may still be some opportunity to secure assistance from Arbitrator Kaplan for an expedited mediation, as well as a possibility for arbitration. The applicant has not persuaded me that he is in any way prevented from seeking recourse before Arbitrator Kaplan regarding his allegations of unfair and differential treatment. Further, if the conditions set out in the agreements do in fact materialize the respondents argue they are entitled to rely on section 45.1 of the Code to have both Applications dismissed.

36I appreciate that the applicant is dissatisfied with the status of his residency transfer; however, there is no indication that the issues raised in the suspension grievance, which overlap with the applicant’s human rights concerns, will not be resolved or dealt with through the arbitration process. The Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

37In these circumstances, I find that deferral is the most fair and just way of proceeding with the Applications. I am aware of the applicant’s position that deferral will give rise to further delay and that he wishes for his human rights allegations to be dealt with promptly as he may leave the country. However, in my view, the applicant’s interest in having the merits of his case determined while he remains in Canada is outweighed by other factors, including that all parties are entitled to some degree of certainty and finality with respect to the arrangements they agreed upon as part of the grievance proceeding. It is evident that the parties committed significant time and effort during the arbitration to create agreements that set out a variety of steps and contingencies. At the time of the arbitration settlement, the parties indicated an intention to resolve all outstanding issues and the processes the parties initiated prior to the commencement of the Applications have not concluded. In light of the fact that the grievance was commenced first and the arbitration remains outstanding, as well as the issue of overlapping allegations, I find it appropriate to defer the Applications.

38Accordingly, the Tribunal orders the deferral of the Applications pending the conclusion of the grievance/arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.