Robinson v. Brightstar Medical – Methadone Clinic, 2013 HRTO 1598

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tanya Robinson

Applicant

-and-

Brightstar Medical – Methadone Clinic and Sara Enders

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: September 23, 2013

Citation: 2013 HRTO 1598

Indexed as: Robinson v. Brightstar Medical – Methadone Clinic

WRITTEN SUBMISSIONS

Tanya Robinson, Applicant

Self-represented

Brightstar Medical – Methadone Clinic, Respondent

Brendan Gray, Counsel

Sara Enders, Respondent

Jennifer Lohuis, 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”) on February 13, 2013. The Application alleges discrimination on the basis of race and disability.

2The purpose of this Interim Decision is to determine whether the Application should be deferred to another proceeding; and a Request for Order During Proceeding seeking the removal of the individual respondent (the “Request”).

BACKGROUND

3The applicant is a receptionist/drug screener for the respondent clinic and the allegations arise of her employment with the clinic. The respondent Ms. Enders is described as the clinic manager in the Application.

4The applicant self identifies as “Nishnabe Native”. Among other things, the applicant alleges that Ms. Enders made remarks about First Nations clients which the applicant particularizes.

5Apart from the allegations against Ms. Enders, the applicant alleges that one of the nurses was unlicensed, that she was overlooked for the clinic manager position, that she was harassed about her need for therapy following a car accident, that she was denied necessary accommodation and that she was terminated without cause. The applicant states that she raised complaints about the alleged harassment and discrimination with three doctors, one of whom is identified as the contact person for the clinic respondent in the Application.

6In the Application the applicant identified two related proceedings – a complaint filed with the College of Physicians and Surgeons of Ontario (the “College”) and a separate proceeding at the Ontario College of Nurses. At the request of the Tribunal, the applicant provided further information but only in respect of the former.

7It appears that in or around the same time that the applicant filed the Application, the applicant made a complaint to the College regarding the alleged conduct of two physicians. These physicians are identified in the Application as persons in authority that the applicant complained to about the alleged harassment and discrimination. A copy of a letter to the applicant from the College has been provided dated February 15, 2013, which the applicant adopted as the summary of her complaint. The complaint includes the allegation that one of the doctors exposed the applicant and the patient roster to unlicensed care and that the same doctor behaved unprofessionally by making a deduction from the applicant’s last pay cheque. The remaining allegations appear to be unrelated to the Application.

8The Application was delivered to the parties along with a Notice of Intent to Defer provided by the Registrar.

9The clinic respondent has filed submissions opposed to deferral. The clinic respondent states that the applicant has not provided any explanation of how, specifically, the determination of the complaints filed under the Regulated Health Professions Act (the “RHPA”) will affect the Application and that applying the criteria considered by the Tribunal, there is no benefit to deferring the Application. The clinic respondent also relies on s. 36(3) of the RHPA which it states provides a statutory privilege against use of documents from the former process in a civil proceeding. In light of this provision, the respondent submits that the related proceeding can have no effect on the ultimate outcome of the Application.

10The individual respondent consents to the proposed deferral but does not outline the reasons for its consent.

11The applicant did not file submissions.

Should the Application be deferred?

12Deferral 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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

13Some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and steps taken to pursue them.

14In this case, the applicant originally identified two related proceedings although when asked to provide further information she only provided the complaint for the College’s proceeding. Thus, I limit my consideration of deferral to that proceeding.

15Both proceedings are at an early stage. While it is clear there is some limited overlap in the facts in the Application and the complaint to the College, the overlap is not significant. The College’s complaint does not involve many of the allegations in the Application including that the applicant was overlooked for the clinic manager position, that she was harassed about her need for therapy following a car accident, that she was denied necessary accommodation and that she was terminated without cause. Further, the allegations in the Application are about whether the clinic and individual respondent discriminated against the applicant whereas the College’s complaint appears to be limited to a claim of professional misconduct against two physicians. The College’s complaint on its face does not allege discrimination nor refer to the alleged discriminatory comments made by individual respondent.

16Having regard to the foregoing, I do not find that this is an appropriate case in which to exercise my discretion to defer the proceeding. If during the processing of the Application, the College makes a decision on the complaint, the Tribunal can consider what effect, if any, to give to any such decision. At that time, the respondent may renew its submissions on the application of s. 36(3) of the RHPA to the Tribunal’s proceeding.

17The Application will continue to be processed. Directions are provided below regarding the filing of a response.

Should the individual respondent be removed?

18Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14, at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

6The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

19In this case, Ms. Enders submits that applying the factors in the Tribunal’s case law, she should be removed as a party. In considering whether there is a compelling reason to continue to include Ms. Enders, she argues that the allegations against her are with regard to other persons or are mere hearsay and conjecture.

20The applicant is strongly opposed to removing Ms. Enders. While acknowledging there is a corporate respondent liable for the same conduct, the applicant highlights that that respondent is separately represented and Ms. Enders has not asserted that the corporate respondent will accept liability. Further, the applicant submits that Ms. Ender’s conduct is a central issue and that her conduct is worthy of “personal censure”. In her submissions, the applicant submits that she reported to Ms. Enders, that Ms. Enders was largely responsible for the workplace atmosphere and that Ms. Enders created a toxic environment for the applicant because she was openly discriminatory toward First Nations clients of the clinic respondent in comments made which the applicant particularizes in the Application and her submissions.

21I deny the Request to remove Ms. Enders.

22This Application is at an early stage. Responses have yet to be filed. Based on the material filed, the applicant reported to Ms. Enders. With respect to allegations, Ms. Enders is alleged to have made a number of discriminatory remarks about First Nations people which the applicant particularizes and which the applicant submits led to a “discriminatory atmosphere” for her. The corporate respondent is separately represented and has not filed any response to the Request or otherwise indicated that it will assume liability for the alleged conduct. In light of these circumstances and at this early stage, I find that the individual respondent should continue as a party.

23The Tribunal orders:

• The Application will continue to be processed;

• The respondents are required to file Responses within 35 days of the date of this Interim Decision; and

• The Request for Order During Proceeding to remove the individual respondent is denied.