Kissoon v. Victorian Order of Nurses, 2013 HRTO 1479

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Basdaye Kissoon Applicant

-and-

Victorian Order of Nurses and the College of Nurses of Ontario Respondents

DECISION

Adjudicator: Douglas Sanderson Date: August 29, 2013 Citation: 2013 HRTO 1479 Indexed as: Kissoon v. Victorian Order of Nurses

APPEARANCES

Basdaye Kissoon, Applicant Self-represented

Victorian Order of Nurses, Respondent Sarah Crossley, Counsel

The College of Nurses of Ontario, Respondent Raj Anand, Counsel

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 with respect to employment and vocational associations because of reprisal.

BACKGROUND

2The applicant alleges that the respondent Victorian Order of Nurses (“VON”) placed her on compulsory sick leave and terminated her employment. VON states that it cancelled the applicant’s client’s visits pending a meeting with managerial personnel on June 15, 2011, after her behaviour caused it to be concerned about her mental health, judgement and ability to perform the duties of her position. Specifically, VON states that the applicant made allegations in May 2011 of patient abuse and initiated investigations with the police and the Public Guardian and Trustee of Ontario, instead of following VON’s procedures. VON states that these investigations did not result in any findings of neglect or abuse, but the applicant continued to insist the client in question was at risk. The client subsequently asked that VON not assign the applicant to provide care for the client. In June 2011, another client requested that VON remove the applicant from the client’s primary care because of concerns regarding the applicant’s nursing abilities and lack of judgement.

3Following the meeting on June 15, 2011, the applicant sent an e-mail message to management continuing to allege patient abuse and stated that she had written letters to the Ontario Human Rights Commission, the Office of the Attorney General of Canada and the Law Society of Upper Canada alleging client abuse and requesting assistance to reveal a conspiracy. VON states that the applicant sent another e-mail message on June 21, 2011, which, although incoherent, seems to suggest that VON was not operating properly. VON states that it met with the applicant regarding these issues on June 24, 2011 and that the applicant was at times rambling, unfocussed and incoherent and at other times non-communicative. VON placed the applicant on medical leave, given its concerns about the applicant’s behaviour and health, until she could provide medical documentation that she was fit to return to work.

4VON states that it did not terminate the applicant’s employment. VON states that the applicant continued to exhibit disturbing behaviour after being placed on medical leave and did not provide medical documentation to VON indicating that she was fit to return to nursing.

5VON states that it reported its concerns to the respondent College of Nurses of Ontario (the “College”) after it learned that the applicant had been hospitalized following a psychotic episode on July 27, 2011. The College formed a panel of its Inquiries, Complaints and Reports Committee (“ICRC”) to investigate. On June 4, 2012 the ICRC panel made an interim order directing the Executive Director of the College to suspend the applicant’s Certificate of Registration (essentially her license to work as a nurse) on an interim basis and referred the matter to the College’s Fitness to Practise (“FTP”) Committee.

6On August 20, 2012 a panel of the FTP Committee held a hearing to determine if the applicant was incapacitated as defined in section 1(1) of the Health Professionals Procedural Code (“HPPC”), which is Schedule II to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. (“RHPA”). On August 24, 2012, the FTP panel released its decision in which it found that the applicant was incapacitated as defined in the HPPC and ordered the Executive Director of the College to suspend the applicant’s Certificate of Registration until such time as the applicant’s health allows her to return to the practise of nursing and she meets other requirements set out by the FTP panel. Both the ICRC and the FTP panels based their decisions on a psychiatric assessment that indicated that the applicant was suffering from a psychotic disorder and was incapacitated and unfit to practise as a nurse.

7The applicant alleges that VON reported her to the College as a reprisal and that the College’s decision to suspend her Certificate of Registration was also discriminatory on the basis of reprisal. The applicant alleges that the reprisal by the respondents was related to her attempts to report what she perceived to be patient abuse to the Ontario Human Rights Commission, amongst other organizations.

8The College was identified as an affected party in the Application and filed a Request to Intervene as a party respondent. In an Interim Decision, 2013 HRTO 424, the College’s Request to Intervene was granted.

9The respondents both filed a Request for Summary Hearing seeking the early dismissal of the Application because it has no reasonable prospect of success. The respondents also seek the early dismissal of the Application pursuant to section 45.1 of the Code, because they submit the substance of the Application was appropriately dealt with in the College’s proceedings. The College also relies on the doctrines of judicial immunity, deliberative secrecy and the prohibition against the compelling of FTP Committee members of the College in civil proceedings as set out in section 36(2) of RHPA.

10By Case Assessment Direction of March 13, 2013, the Tribunal granted the respondents’ Requests and directed that a summary hearing be held to determine whether the Tribunal should dismiss the Application because it has no reasonable prospect of success or pursuant to section 45.1 of the Code, section 36(2) of the RHPA, or the doctrine of judicial immunity. The Tribunal held the summary hearing by teleconference on June 4, 2013.

ANALYSIS AND DECISION

Reasonable Prospect of Success

11Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

12In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-9:

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.

13The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment because of one or more of the grounds under the Code, such as disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At a summary hearing, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment he or she alleges to have experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

14At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

Reprisal Allegations

15Section 8 of the Code states as follows:

8. 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.

16The prohibition against reprisal protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their rights under the Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish that the respondent intended to punish or retaliate against the applicant. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

17In the Application and in both her oral and written submissions, the applicant pointed to evidence that she had written a letter to the Ontario Human Rights Commission (OHRC) regarding patient abuse in VON’s operations. The applicant stated that she did not send the letter to the OHRC, but made both VON and the College aware of her intent to raise concerns about alleged patient abuse. In her oral submissions, the applicant also stated that she had reported VON’s alleged patient abuse to other organizations. The applicant alleged that VON suspended her from employment and reported her to the College as a reprisal for her advocacy of patient rights. The applicant asserted that the College did not have time to investigate the information presented to the FTP panel or address her concerns regarding VON representatives allegedly transferring incorrect medical information about her without her consent. The applicant further stated that a medical assessment did not disclose abnormal behaviour or result in a diagnosis of mental illness. The applicant asserted that the College’s conduct of its proceedings and the decision to suspend her Certificate of Registration amounted to a reprisal.

18Accordingly, the applicant’s reprisal claims against both VON and the College are based on her intention to raise concerns about patient abuse to the OHRC and other organizations. As noted above, however, a reprisal claim under section 8 of the Code only arises when a person has enforced or attempted to enforce his or her human rights. Patient abuse, while an important issue, is not a prohibited ground of discrimination under the Code and therefore raising concerns about such abuse does not amount to enforcement of a Code right. In these circumstances, the evidence the applicant has or is reasonably available to her could not establish a reprisal as against either respondent, even assuming I accept that the respondents’ actions were intended to retaliate for her advocacy regarding patient abuse. Consequently, these allegations have no reasonable prospect of success.

Age

19The applicant did not select age as a prohibited ground of discrimination applicable to her Application at section 5 of the application form: “Grounds Claimed”. She did, however, respond to Question A35 “Explain why you believe you were harassed or discriminated against because of your age”. Her response to this question does not, however, point to any evidence on which an inference of age discrimination could be based. In her oral and written submissions, the applicant stated that she was subject to stereotyping because of age, but pointed to no evidence that link her age to the respondents’ actions. In these circumstances, the applicant’s allegations related to age have no reasonable prospect of success.

Disability

20The applicant also did not select disability as a prohibited ground of discrimination applicable to her Application, but indicates in the narrative of the Application that she considered that VON's decision to suspend her from employment amounted to discrimination because of disability or perceived disability. The applicant pursued this position in her oral and written submissions at the summary hearing.

21VON acknowledges that it removed the applicant from active employment because it had reason to believe that the applicant’s mental health made her unfit to practise as a nurse and reported this to the College. As an employer, VON is obliged to maintain a safe work environment, which includes ensuring its employees have the capacity to perform their duties and VON is also obliged to ensure that its clients receive appropriate care. Incapacitated nurses are not entitled to practise, pursuant to the RHPA. The Code does not require an employer to allow an employee to work when it has reasons to believe that the employee may be incapable of performing his or her duties, notwithstanding that the employee’s incapacity may be caused by a disability. Consequently, VON’s decision to place the applicant on leave because it perceived her to be incapable of performing her duties because of a mental illness was not necessarily discriminatory. VON’s position was that it was prepared to consider reinstating the applicant if she provided medical evidence confirming her capacity to work as a nurse.

22The applicant did not point to any evidence that she provided VON with any medical information indicating she was capable of returning to work or evidence that VON declined to reinstate her in the face of such information. VON’s belief that the applicant was incapacitated was confirmed by the College’s ICRC and FTP Committees. In these circumstances, VON’s actions do not amount to discrimination – even if the applicant’s allegations are accepted as true. Consequently, the applicant’s allegation of discrimination because of disability has no reasonable prospect of success.

23Given my findings, it is unnecessary to address the respondents’ other arguments. The Application is dismissed.