Sisson v. St. Michael’s Hospital, 2013 HRTO 1494

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Sisson

Applicant

-and-

St. Michael’s Hospital and Michael McKee

Respondents

Decision

Adjudicator: David Muir

Date: September 5, 2013

Citation: 2013 HRTO 1494

Indexed as: Sisson v. St. Michael’s Hospital

Appearances

Richard Sisson, Applicant ) Self Represented

St. Michael’s Hospital, Respondent ) Angela Bradley, Counsel

Michael McKee, Respondent ) Moya Graham, Counsel

)

1This is an Application filed pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in the provision of goods and services on the basis of disability. The applicant alleges that Dr. McKee inappropriately and unprofessionally terminated the doctor/patients relationship. The applicant also alleges that the respondent St. Michael’s Hospital did not properly investigate his concerns.

2In a Case Assessment Direction issued on April 23, 2013 the Tribunal directed, on its own initiative, that a telephone hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis of delay or on the basis that another proceeding has appropriately dealt with the substance of the Application.

3A summary hearing was held by teleconference on September 3, 2013. The applicant attended as did the respondents by counsel.

Timeliness of the Application

4The Application was filed on March 12, 2013 and relates to incidents in 2011 culminating in the decision of the respondent McKee to terminate the doctor patient relationship on April 15, 2011. The applicant complained to the hospital in several communications with it in April and May 2011.

5Section 34 (1) and (2) of the read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

6The Application is dismissed. I find that Application is out of time and must be dismissed unless the applicant is able to show that there is a good faith explanation for the delay. For the reasons that follow I find that the applicant has not met his burden of establishing a good faith explanation for the delay.

7Subsequent to the termination of the doctor/patient relationship on April 15, 2011 the applicant made a complaint to the respondent hospital in April and May 2011 which was responded to shortly afterwards, in May 2011. He then made a complaint about Dr. Mckee to the College of Physicians and Surgeons of Ontario (“CPSO”) in August 2011. An investigation was conducted by the CPSO’s Inquiries complaints and Reports Committee (“ICRC”). The ICRC determined that Dr. McKee’s decision to terminate his treatment of the applicant was appropriate. The applicant sought review of this decision by the Health Professions Appeal and Review Board (“HPARB”) which upheld the decision of the ICRC in February 2013. This Application was filed a short time later.

8The applicant explained that he thought that he was required to attempt to resolve the matter before filing the complaint. The applicant also claims that he did not know that he could make two complaints at the same time and that he had to exhaust one complaint before beginning another. He asserts that he acted with due diligence in seeking to mitigate the consequences of the respondents’ actions by seeking a resolution. The applicant also indicates that he was busy with medical appointments, meetings with five lawyers and attempting to find another surgeon to deal with his medical issues.

9As indicated above, the Application was filed almost two years after the last incident of discrimination on April 15, 2011. The applicant took issue with my characterization of the delay claiming that he did not know that he had a human rights complaint until he received Dr. McKee’s response to his complaint to CPSO in November 2011. Whether the one year period contemplated in section 34 begins in April or November 2011 the Application was filed well beyond the one year time limit provided for in the Code. The Application is out of time unless there is a good faith explanation for the delay.

10The requirement that there be a good faith explanation for delay requires that an applicant show more than the mere absence of bad faith. See Miller v Prudential Lifestyles Real Estate, 2009 HRTO 1241. In this case the applicant claims to have been ignorant of his right to file a human rights Application. However, the Tribunal has concluded in a number of cases that ignorance of one’s rights does not, on its own, constitute a good faith explanation for delay in filing an application. See Lutz v. Toronto (City), 2009 HRTO 1137. Although it deals with the application of section 34(11) I agree with and adopt the statement referred to me by counsel for the respondent Mckee from McGhie v Bell Canada, 2011 HRTO 1197, at para. 10:

Similarly in some circumstances, it could be reasonable for an applicant to pursue other avenues such as the grievance/arbitration process before resorting to an application under the Code. However, it is not reasonable for an applicant, as in this case, to delay making inquiries about the existence of Code remedies while awaiting the outcome of other processes.

11In this case the applicant asserts that he consulted five lawyers about his case. He asserts as well that at the latest in November 2011 he knew he had a human rights complaint. Accepting for the moment his assertion that he thought he had to complete the CPSO process it is not at all clear why he would not have sought advice about his options at any point prior to the release of the HPARB’s decision and the filing of this Application. I find that the applicant has not met his burden of establishing a good faith explanation for the delay. Having come to this conclusion I need not consider whether any party would be substantially prejudiced by the delay.

Section 45.1

12The second issue raised in the Case Assessment Direction was whether the Application should be dismissed pursuant to section 45.1 of the Code because the substance of it had been appropriately dealt with, in whole or in part, by the HPARB. The parties were referred to the Supreme Court of Canada’s decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52. Subsequent to the release of the Case Assessment Direction the Supreme Court of Canada released its decision in Penner v. Niagara (Regional Police Services Board) (“Penner”), 2013 SCC 19, followed by the Tribunal’s first interpretation of Penner in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298. The respondents both addressed these cases and argued that the principles in Figliola, above, are still applicable to these circumstances and the Application should be dismissed on this basis as well.

13Having concluded that the Tribunal has no jurisdiction to consider this Application because it is out of time, there is no need in all of the circumstances to consider the arguments advanced on the application of section 45.1

14For all of these reasons the Application is dismissed.