Gan v. College of Physicians and Surgeons, 2013 HRTO 1888

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peiyan Gan Applicant

-and-

The College of Physicians and Surgeons, The Health Professions Appeal and Review Board, and The Information and Privacy Commissioner of Ontario Respondents

A N D B E T W E E N:

Yunhong He Applicant

-and-

The College of Physicians and Surgeons, The Health Professions Appeal and Review Board, and The Information and Privacy Commissioner of Ontario Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: November 13, 2013

Citation: 2013 HRTO 1888

Indexed as: Gan v. College of Physicians and Surgeons

APPEARANCES

Peiyan Gan, Applicant Yunhong He, Representative

Yunhong He, Applicant Self-represented

The College of Physicians and Surgeons, Respondent Carina Lentsch, Counsel

The Health Professions Appeal and Review Board, Respondent Steven G. Bosnick, Counsel

The Information and Privacy Commissioner of Ontario, Respondent Lawren Murray, Counsel

Introduction

1These are Applications 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.

2The Application of Ms. Gan alleges discrimination because of race, colour, ancestry, place of origin, ethnic origin, disability and creed. Ms. Gan’s Application also alleges reprisal.

3The Application of Ms. He alleges discrimination because of race, colour, ancestry, place of origin, ethnic origin and disability. Ms. He’s Application also alleges reprisal.

BACKGROUND

4Ms. Gan is an elderly woman who has experienced various health problems requiring medical treatment. Ms. He is Ms. Gan’s daughter. Both Applications describe complaints about Ms. Gan’s doctors made to the College of Physicians and Surgeons (“the College”) that the Inquiries, Complaints and Reports Committee (“the Committee”) of the College investigated and decided were not substantiated.

5Ms. He filed one complaint to the College dated September 16, 2010 against Dr. Freedman, stating that she is her mother’s “substitute decision maker”. In the area under the heading, “Person registering Complaint”, Ms. He provided her own name. In the area under the heading, “Patient’s Information”, Ms. He provided her mother’s contact information. Ms. He states in that complaint that Dr. Freedman provided the wrong treatment for her mother, and that he consequently harmed her mother.

6Ms. He filed a second complaint to the College dated November 14, 2010 against Dr. Kingston, stating again that she is her mother’s “substitute decision maker”. This second complaint is in the form of a letter and is a complaint by Ms. He about Dr. Kingston’s refusal to share with Ms. He a cardiology report with respect to her mother, and his refusal to provide Ms. He with a medical opinion about her mother. The complaint letter is signed by Ms. He.

7The Committee issued one decision which addressed both complaints and made a finding that the doctors had acted reasonably and appropriately, including a finding that Dr. Kingston had shared the report with Ms. He. The Committee decided that it would take no further action. A review of the Committee’s decision to the Health Professions Appeal and Review Board (“HPARB”) was requested. HPARB takes the position that it was Ms. He who requested the review and processed it as her request. The documents filed by HPARB in advance of the summary hearing support its position that it was Ms. He who requested the review.

8Ms. He filed and signed yet another complaint to the College about a third doctor, Dr. Edney, dated January 11, 2011 “about negligence of Dr. Edney to my mother Peiyu Gan’s health care”. Included in HPARB’s documents is a copy of a letter “Re: Complaint” from Ms. He to the College dated December 14, 2010 which complains of alleged negligence and incompetence of Dr. Kingston and Dr. Edney. The decision issued on August 12, 2011 by the Committee about Dr. Edney begins with the statement:

Ms. He wrote to the College in February 2011. She expressed concern about the care her elderly mother, Mrs. Gan, received from Dr. Edney, a family physician.

9None of the parties provided a copy of a February 2011 letter from Ms. He to the College. Ms. He argued that it was her mother who filed the complaint to the College and pointed to a copy of a letter filed with the Tribunal from her mother to the College dated May 29, 2011, “Re: My complaints about Dr. James Edney (quote MB/81445)” but the contents of this letter refer to a complaint already filed and do not prove who was the original complainant about Dr. Edney. In summary, Ms. He’s letters of complaint to the College about Dr. Edney dated December 2010 and January 2011 were followed by one from Ms. Gan about him in May 2011. It is unclear as to whether one of the applicants filed a letter in February 2011 which may have become lost, or whether the Committee’s decision issued in August 2011 is referring to Ms. He’s letter dated January 11, 2011 which may have been received in February 2011.

10The Committee’s decision about Dr. Edney provides “Key Relevant Context Information” which lists the following statements:

• Following surgery in 2010 to resect [a cecal mass], Mrs. Gan tragically suffered a spontaneous subdural bleed with a midline shift which required emergency evacuation of the clot.
• Unfortunately, since that time Mrs. Gan has remained hemiparetic, bed-bound, aphasic and unable to swallow. She has therefore required a G-tube for feeding.
• Though no legal power of attorney for personal care (“POA”) documents has been found, Mrs. Gan’s daughter, Ms. He, is the de facto substitute decision maker (“SDM”)
• Apparently both Mrs. Gan and Ms. He are practitioners of Falun Gong. Ms. He appears to be highly suspicious of Western medicine and its practitioners.

11The Committee’s decision goes on to provide reasons for not taking further action on the complaint about Dr. Edney and to commend him “on his excellent care of and compassionate concern about Ms. Gan, and for the actions he took on her behalf.” Ms. He requested a review of the Committee’s decision to HPARB. HPARB takes the position that it was Ms. He who requested the review and processed it as her request.

12HPARB confirmed the decisions of the Committee to take no further action. HPARB filed its Decision and Reasons dated August 31, 2012 with respect to Dr. Freedman and Dr. Kingston. No party filed HPARB’s Decision and Reasons with respect to Dr. Edney.

THE ALLEGATIONS IN THE HUMAN RIGHTS APPLICATIONS

13Although it is difficult to understand from the Applications precisely what conduct the applicants allege was discriminatory and/or constituted reprisals, they appear to allege that the decisions of the Committee violate the Code. With respect to creed, Ms. Gan’s Application points to the Committee’s reference in its decision to her and her daughter being practitioners of Falun Gong, and the Committee’s implication that Ms. He’s creed makes her suspicious of Western medicine and its practitioners and that therefore her complaint is tainted by her creed.

14The Applications also appear to allege discrimination with respect to the decision or choice of the College to join complaints against two of the doctors so that only one decision was written by the Committee for both. They also appear to allege discrimination with respect to HPARB’s decision or choice to join the applicant’s appeals of the Committee’s decisions into one “pre-review telephone hearing” that the applicants allege was “taking advantage” of the fact that Ms. Gan is disabled and that she and her daughter are Chinese. It appears that these allegations take issue with privacy concerns where joinder occurred, because joinder ensured that each of the doctors in those cases could know the circumstances of the complaints against the other.

15The Applications also describe how the College delivered Ms. He’s birth certificate to HPARB in the context of the appeals, thus revealing her personal information, but the College did not provide HPARB with personal information of the doctors. The Applications allege that the disclosure of Ms. He’s birth certificate to HPARB, and HPARB’s disclosure of it to the doctors, is therefore discrimination because Ms. He is Chinese and the doctors are white.

16The Applications describe Ms. He’s filing of privacy complaints with the Information and Privacy Commissioner (“the Commissioner”), privacy complaints that alleged that the College and HPARB inappropriately collected and/or disclosed personal information (Ms. He’s birth certificate) and inappropriately joined the complaints against the two doctors. The Applications appear to allege that in dismissing the privacy complaints and finding that there was no justification for further investigating 1) whatever the College and HPARB did with Ms. He’s birth certificate and; 2) the joinder of complaints, the Commissioner encouraged HPARB and the College to keep and disclose the personal information of the applicants without consent, thereby infringing their rights under the Code. Finally, the Applications appear to take the position that the Commissioner’s reasons for dismissal of the privacy complaints were insufficient.

17In Case Assessment Directions dated September 7, 2012 and October 10, 2012, the Tribunal noted that it appeared the applicants would not be able to prove reprisal by the respondents for the applicants claiming or enforcing a right under the Code, nor would they be able to make a link to the grounds alleged in their Applications. The Tribunal also noted that the Applications appear to challenge adjudicative decision making, and that the doctrine of judicial immunity may insulate the respondents from a complaint under the Code. The Tribunal therefore directed that a summary hearing be held for both Applications together to determine whether the Tribunal has jurisdiction over them, and whether there is no reasonable prospect of success that they will succeed.

ANALYSIS

18The summary hearing took place during three separate conference calls on different dates. Although the applicant did not wish an interpreter on the first date of the summary hearing, she arranged through the Tribunal to have one present for the subsequent dates. At the summary hearing, Ms. He made oral submissions on behalf of herself and her mother to explain the focus of the Applications, why they were filed and why there is a reasonable prospect for their success.

19For the reasons that follow, the allegations relating to the disclosure of Ms. He’s birth certificate; the joinder of Ms. He’s and Ms. Gan’s complaints; and HPARB’s alleged refusal to give Ms. Gan standing are dismissed as having no reasonable prospect of success. It is not necessary for me to determine whether the respondents also have immunity in respect of such allegations.

20At this stage of the proceedings, however, I am not prepared to dismiss Ms. Gan’s allegation that someone at the College named “Mark” refused to allow her to file a complaint on the basis that she is disabled. In order to determine whether there is no reasonable prospect of success for such an allegation, or to determine whether any immunity might apply to any such refusal, Ms. Gan needs to file further particulars with respect to the conversation that Ms. He allegedly had with “Mark” in which he made the remark. Directions in this regard are below.

21As for the applicants’ claim that HPARB discriminated against them when it confirmed the Committee’s decision in respect of their complaints, I find that HPARB is protected from such discrimination claims pursuant to the doctrine of judicial immunity and dismiss it accordingly.

22In addition, I find that the applicants’ claim based on the Committee’s decision must be dismissed. This is because the Committee’s decision is inadmissible in this proceeding by virtue of s.36(3) of the RHPA.

23Finally, I also dismiss the applicants’ claim that the Commissioner decided not to deal further with the applicants’ privacy complaints for discriminatory reasons on the basis that that claim has no reasonable prospect of success.

Allegations Against the College and HPARB

Disclosure of the Birth Certificate

24The applicants believe that the College was upset with them for appealing the Committee’s decisions to HPARB, and that is one of the reasons for which the College reprised against them by releasing Ms. He’s birth certificate to HPARB when it sent to HPARB its entire record of the investigation which included her birth certificate. The birth certificate was sent to the doctors who were parties and consequently deemed to be entitled to documents in the proceedings.

25Section 8 of the Code explains what is meant by reprisal for the purposes of allegations made to the Tribunal:

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.

26Nothing in Ms. He’s written or oral submissions about alleged reprisal by the College describes reprisal for her or her mother having tried to claim or enforce rights under the Code. Even if it were true that the College wanted to give the applicants a difficult time and release Ms. He’s birth certificate because the applicants requested reviews of the Committee’s decisions to HPARB, such behaviour is not covered by the s.8 of the Code. The rights they were seeking through the HPARB review did not involve rights under the Code. The allegation of reprisal against the College is therefore dismissed as it has no reasonable prospect of success.

27Ms. He argued at the summary hearing that another reason for which the College disclosed her birth certificate is because the applicants are Chinese. Ms. He also argued that HPARB should not have allowed her birth certificate to be delivered to the doctors. Ms. He did not assert that her birth certificate has her address on it, but she evidently feels it contains personal information, like the date of her birth, that should not have been shared. She argued that the doctors’ addresses were struck from documents, apparently to protect their personal information from being shared. Ms. He explained her theory that the applicants are Chinese and the doctors are white. Ms. He said that she believes that people from the same race help each other more than those of other races, and she believes that the people from the College and HPARB are white and favoured the white doctors by protecting the doctors’ confidentiality, but not hers. She agreed, though, that the only person from the respondents’ offices who she knows is white is a man from the College named “Mark”.

28Other than the fact that Mark and the doctors appear to be white to Ms. He while she and her mother are Chinese, Ms. He could point to no evidence to prove that including the birth certificate in the Committee’s record of investigation that the College sent to HPARB was discriminatory. Section 32 of the Health Professions Procedural Code (“HPPC”), being Schedule 2 to the Regulated Health Profession Act, 1991, (“RHPA”), S.O. 1991, c.18, states that if HPARB is requested to review a decision, then the College must give to HPARB the record of the Committee’s investigation and HPARB must disclose everything given it by the College to the parties. The HPPC does not grant the College discretion to expunge anything from the record of investigation. The parties agree that Ms. He’s birth certificate was in the record of investigation. In this context, I dismiss the allegations against the College that disclosing the birth certificate was discriminatory.

29Section 32(3) of the HPPC does grant HPARB some discretion to refuse to disclose documents “of such a nature that the desirability of avoiding their disclosure in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that disclosure be made.” However, without more evidence than the difference in race, colour and origins between the applicants and the doctors, I see no reasonable prospect for the applicants to demonstrate that HPARB or its staff chose not to withhold Ms. He’s birth certificate because she was Chinese or associated with someone with a disability.

Joinder

30With respect to similar allegations made in the Applications, but not covered by Ms. He in her oral submissions, the fact that the College and HPARB decided to join complaints against different doctors and consequently allowed each doctor to view documents related to another file does not appear related to the applicants’ race, colour, ancestry, place of origin, ethnic origin or disability. I read nothing in the documents filed at the Tribunal by the applicants and heard nothing in Ms. He’s argument at the summary hearing to link the grounds alleged with the joinder of complaints. I find there is no reasonable prospect of success for the allegations related to joinder, and I dismiss them accordingly.

Allegations Re: Standing and Refusal to Accept Complaint

31At the summary hearing, Ms. He made an allegation that is not apparent from a reading of her and Ms. Gan’s Applications. She explained that the College and HPARB would not allow Ms. Gan to have standing as a party in their proceedings, and that the applicants believe that the reason the College and HPARB would not allow Ms. Gan standing is because the applicants are Chinese, because Ms. Gan is disabled, and because the applicants requested reviews and made privacy complaints to the Commissioner.

32Ms. He did not point to any evidence to demonstrate that HPARB would not allow her mother standing in its complaint review because of reprisal as defined by s.8 of the Code or because of race, disability or any other ground in the Code. As stated above, HPARB is restricted by s.29 of the HPPC, which stipulates that the complainant to the College and the member who is the subject of the complaint must be considered the parties in any review by HPARB. HPARB would naturally refuse Ms. Gan standing in a review of Committee decisions where Ms. He was the complainant. In the circumstances, the allegations of reprisal are therefore dismissed as they have no reasonable prospect of success.

33With respect to the College, Ms. He explained that she had a conversation with a person named “Mark” at the College who she alleges said that Ms. Gan lost her right to make a complaint about the doctors because she is disabled. It does not appear that “Mark” was on a panel of the Committee.

34After Ms. He completed her oral submissions, I asked counsel for the College to include in her submissions her client’s position with respect to whether any act of a staff member (allegedly an act by “Mark”) that prevented Ms. Gan from filing a complaint against doctors on the basis that Ms. Gan is disabled would be within the Tribunal’s jurisdiction. Counsel for the College requested an adjournment in order to prepare a response to the new allegation. In the circumstances of Ms. He’s new allegation, I granted the request, and the summary hearing continued another day.

35At the continuation of the Summary Hearing, counsel for the College argued that the applicants should not be permitted at this late stage to expand the Applications. I am not convinced, however, that the allegation is not included in the Applications which Ms. He drafted in English, not her first language. The Applications are not particularly clear. In cases where applicants are representing themselves, particularly when their first language is not French or English, it is sometimes necessary for the Tribunal to provide them with an opportunity to orally explain what their allegations are.

36At this stage of the proceedings, I am not prepared to dismiss the allegation by Ms. Gan that someone at the College named “Mark” refused to allow her to file a complaint on the basis that she is disabled. In order to determine whether there is no reasonable prospect of success for such an allegation, or to determine whether any immunity might apply to any such refusal, Ms. Gan needs to file further particulars with respect to the conversation that Ms. He allegedly had with “Mark” in which he made the remark.

37Ms. Gan also needs to describe in her particulars the time and location in which the conversation took place, particularly where “Mark” was located (which building and which room), and whether he was behind a counter. She must provide details about his title at the College, and how he introduced himself. She must provide the context for Ms. Gan asking to file a complaint when it appears that Ms. He might have already filed at least one complaint as her mother’s representative about the same issue. It appears that at the time Ms. He approached the College to make complaints against the doctors on her own or her mother’s behalf, Ms. He was Ms. Gan’s substitute decision-maker. Therefore, Ms. Gan also must confirm whether she had legal capacity at the time that she attempted to file a complaint and was allegedly refused.

Allegation of Creed Discrimination Against HPARB

38While Ms. He did not argue the allegation of discrimination because of creed against HPARB at the summary hearing, I wish to address it given that it clearly is an issue addressed in the documents filed by the applicant.

39I find that the Tribunal does not have jurisdiction over the allegation that HPARB discriminated against the applicants because they issued a confirmation of the Committee’s August 12, 2011 decision in which the Committee references the applicants’ creed, Falun Gong. There is no need for me to direct a party to file a copy of HPARB’s decision so that I might read it.

40The common law doctrine of judicial immunity prohibits legal proceedings against judicial actors when acting as decision-makers. The doctrine is rooted in the principle of judicial independence, the purpose of which is to ensure that judicial actors are free to execute their decision-making duties with independence and without fear of consequences. (See Cartier v. Nairn, 2009 HRTO 2208).

41The Tribunal has held that the doctrine of judicial immunity extends to quasi-judicial decision-makers whose decisions are challenged under the Code, and it has decided it has no jurisdiction on the basis of adjudicative immunity in numerous cases. (See for example Taucar v. University of Western Ontario, 2013 HRTO 597; Hanif v. College of Veterinarians of Ontario, 2013 HRTO 1454; and Hazel v. Ainsworth Engineered, 2009 HRTO 2180).

42The Tribunal has previously ruled that HPARB is protected by adjudicative immunity when allegations are made against it for the decisions it renders, (MacLachlan v. Health Professions Appeal and Review Board, 2012 HRTO 111). If the applicants wished to challenge HPARB’s confirmation of the Committee’s decision, then they should have judicially reviewed the confirmation decision at court.

43The allegation that HPARB discriminated against the applicants because of their creed is dismissed.

Allegation of Creed Discrimination Against the College

44The College argued that section 36(3) of the RHPA makes it impossible for the applicants to succeed in their allegation that the College discriminated against them because of their creed because the decision of the ICRC which references Falun Gong is inadmissible in a proceeding before the Tribunal. Section 36(3) states:

s.36(3). No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act. 1991, c. 18, s. 36 (3); 1996, c. 1, Sched. G, s. 27 (2).

45I agree with the College. The Ontario Court of Appeal has held that the purpose of this provision is to keep the College’s regulatory proceedings and civil proceedings separate so that documents filed in the context of complaint proceedings before the College were found to be inadmissible in an action for damages arising from sexual assault and breach of fiduciary duty. (See F.(M.) v. Dr. Sutherland, 2000 CanLII 5761. See also the Tribunal’s discussion in Pakarian v. University of Toronto, 2012 HRTO 156 at para.28-29).

46In Conroy v. The College of Physicians and Surgeons of Ontario, 2011 ONSC 324, at paras. 51-57, the Superior Court of Justice decided that it was “plain and obvious” that a statement of claim disclosed no reasonable cause of action and had no chance of success on the basis of s.36(3):

The substance of the claims in the first action all arise from proceedings under the RHPA: the complaints to the College, the inquiries into these complaints, the medical assessments, the referral to the FTPC, referral to the Registration Committee, and the decision of the Registration Committee directing the Registrar to refuse to issue a certificate of registration.

Pursuant to s. 36(3) of the RHPA this body of evidence is not admissible in this civil action. Specifically, none of the records, reports, orders, decisions or other documents created during this process can be admitted in a civil action. Section 36(3) states:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or other thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a Heath Profession Act or the Drug and Pharmacies Regulation Act, or a proceeding relating to any order under s. 11.1 or 11.2 of the Ontario Drug Benefit Act.

This interpretation of s. 36(3) is consistent with the purpose of the section as the Court of Appeal explained in M.F. v. Sutherland, 2000 CanLII 5761 (ON CA), [2000] O.J. No. 2522 (C.A.) at paras. 29 and 31:

The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings - a health professional, a patient, a complainant, a witness or a College employee - fearing that a document prepared for College proceedings can be used in a civil action.

Section 36(3) is one of a number of legislative provisions whose broad objective is to keep College proceedings and civil proceedings separate. Section 36(1) provides for the confidentiality of information that comes to the knowledge of College employees; and s. 36(2) provides that College employees cannot be compelled to testify in civil proceedings about matters that come to their knowledge in the course of their duties.

Recent decisions of this court have followed this appellate authority and consistently applied s. 36(3) of the RHPA in this manner: See Svec v. College of Psychologists of Ontario, [2010] O.J. No. 4804 (S.C.J); Deep v. Massel, [2007] O.J. No. 2811 aff’d at [2008] O.J. No. 18; and Deep v. College of Physicians and Surgeons of Ontario, 2010 ONSC 5248, [2010] O.J. No. 4017 (S.C.J.).

In summary, it is clear from the case law that s. 36(3) of the RHPA creates a blanket prohibition against the admissibility of all evidence collected during the course of the College’s investigation and this prohibition is an absolute one.

However, since the pleaded facts are assumed to be true, it follows that the referral to the FTPC and the posting of this referral on the College website were made after Dr. Conroy’s certificate of registration was suspended and the College had no jurisdiction over Dr. Conroy when it took these steps. For this reason, these specific pleaded facts arguably escape s. 36(3) under a Rule 21 analysis.

While this specific part of the claim may escape s. 36(3), it is important to recognize that s. 36(3) effectively bars Dr. Conroy from relying on all of the other facts pleaded. Evidence of what transpired at the various proceedings, interviews, and the decisions of the various committees are fundamental to Dr. Conroy’s claims. It is difficult to imagine how the claim would proceed when the bulk of the evidence about what happened between Dr. Conroy and the College is inadmissible.

47The reasoning of the court in Conroy is equally applicable to proceeding before this Tribunal, and I find that section 36(3) of the RHPA applies to proceedings before this Tribunal. Accordingly, the Committee’s decision is not admissible and s. 36(3) thus effectively prohibits the Committee’s decision from being adjudicated here. Consequently, there is no reasonable prospect for the success of the allegations against the College with respect to the Committee’s decision referencing Falun Gong. Those allegations are dismissed. The applicants should have brought those allegations to HPARB.

Additional Issue Related to Counsel for the College

48Prior to the third conference call, the applicant filed submissions which included a request that counsel for the College not be allowed to remain representing the College for the reason that the applicant believed counsel had falsely maintained in the last conference call that her client had not received a complaint against Dr. Edney from Ms. Gan. At the commencement of the third conference call, I discussed Ms. He’s concern in the context of my recollection that the College’s counsel had merely been referring to the College’s position that the initiating complaint against Dr. Edney was Ms. He’s letter dated January 11, 2011, and the subsequent letter to the College from Ms. Gan was further to that initiating complaint. Counsel for the College had not agreed with Ms. He that her mother’s letter was the complaint against Dr. Edney which initiated the College’s investigation. Counsel for the College conceded that Ms. He’s May 29, 2011 letter to the College was included in HPARB’s document brief, but she reiterated that the College did not consider this to be the initiating complaint. I saw nothing in the behaviour or communications of counsel for the College that might invite any inquiry into her professionalism or any inquiry as to whether she might be misleading the Tribunal. I made it clear that I would not interfere with counsel’s representation of her client, the College. At any rate, as I pointed out to Ms. He, there is another forum to make complaints against lawyers for alleged unprofessionalism.

Allegations Against the Commissioner

49At the summary hearing, Ms. He confirmed that the Applications did not allege discrimination or reprisal against the Commissioner with respect to the rejection of Ms. Gan’s alleged attempts to complain to the College or to request a review at HPARB. She explained that the focus of the allegations against the Commissioner is with respect to the Commissioner deciding that the College and HPARB were entitled to share Ms. He’s personal information, her birth certificate. She believes that the people at the Commission may be white and this may be why they decided as they did to support the College and HPARB.

50Counsel for the Commissioner relied upon his written submissions filed prior to the summary hearing. The Commissioner’s position is that the decision to dismiss the applicants’ privacy complaints without a full investigation is covered by parliamentary privilege and not reviewable by the Tribunal. The Tribunal, the Commissioner argues, has no jurisdiction to adjudicate claims against the Ontario Legislature, and the Commissioner, as an officer of the Legislature, is subject to those same privileges.

51The Commissioner also takes the position that there is no link between the treatment described in the Applications and the alleged grounds of discrimination. I agree. It appears that the applicants are merely upset with the Commissioner for refusing to investigate further, and that there is no actual allegation that the refusal is based on either applicants’ personal characteristics or grounds under the Code. Even if the Commissioner and her delegate who wrote the decision letter to Ms. He were white, this would not be sufficient to establish that the decision not to investigate the complaints against the College and HPARB was because the applicants are not white. Seeing no evidence with which the applicants might link the alleged grounds with any decision of the Commissioners not to deal further with the applicants’ privacy complaints, I find that there is no reasonable prospect for the Applications to succeed against the Commissioner, and there is no need for me to determine whether a decision of one of the Commissioner’s analysts is subject to privilege and therefore immune from scrutiny by the Tribunal.

CONCLUSION AND DIRECTION

Ms. Gan’s Application

Dismissal of All Allegations But One

52To summarize, with the exception of the allegation by Ms. Gan against the College that it would not permit her to file a complaint because she is disabled, I find that all allegations in her Application either have no reasonable prospect of success or the Tribunal does not have jurisdiction over them, and they are dismissed. As for Ms. Gan’s allegation that the College refused to allow her to file a complaint because of her disability, as stated above, the Tribunal will address whether this allegation has any reasonable prospect of success and/or whether the College is immune from such an allegation pursuant to s.38 of the RHPA once the applicant provides further particulars of the alleged discriminatory conduct which states:

No action or other proceeding for damages shall be instituted against (the College) or a member, officer, employee, agent or appointee of (the College) for any act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act, a Health Profession Act, the Drug Pharmacies Regulation Act, or a regulation or bylaw under those acts for any neglect or default in the performance or exercise in good faith of the duty or power.

53Also, more particulars are needed to determine whether the alleged refusal would have no reasonable prospect of success given that the College may be covered by s.36(3) of the RHPA in the circumstances.

Directions

54In order to determine whether there is no reasonable prospect of success for Ms. Gan’s allegation that she was not permitted to complain to the College because she is disabled, or to determine whether any immunity might apply to any such refusal, Ms. Gan must file further particulars with respect to the conversation that Ms. He allegedly had with “Mark”. She must describe the conversation in which he made the remark, and state what Mark said. Ms. Gan must describe the time and location in which the conversation took place, particularly where “Mark” was located (which building and which room), and whether he was behind a counter. She must provide details about his title at the College, and how he introduced himself. She must provide the context for Ms. Gan asking to file a complaint when it appears that Ms. He might have already filed at least one complaint as her mother’s representative about the same issue. It appears that at the time Ms. He approached the College to make complaints against the doctors on her own or her mother’s behalf, Ms. He was Ms. Gan’s substitute decision maker. Therefore, Ms. Gan also must confirm whether she had legal capacity at the time that she attempted to file a complaint and was allegedly refused.

Ms. He’s Application

55Ms. He’s Application is dismissed in its entirety because I find that all of her allegations have no reasonable prospect of success or the Tribunal has no jurisdiction over them, as discussed above.

next step

56If Ms. Gan files her particulars as directed above within 14 days, the Tribunal will schedule a summary hearing to hear submissions on whether the Tribunal has jurisdiction over or whether there is no reasonable prospect of success for the allegation that the College refused to allow Ms. Gan to file a complaint because of disability. The parties will need to be prepared to argue at any summary hearing the relevance of s.36(3) and s.38 of the RHPA, and whether they apply to “Mark” in the circumstances that Ms. Gan will need to describe in her particulars. The parties may file any additional submissions with respect to the alleged refusal by Mark at least 10 days prior to any summary hearing that will be scheduled if Ms. Gan complies with the directions in this Interim Decision.

57If Ms. Gan does not file her particulars within 14 days, then the Tribunal may dismiss her only remaining allegation.