Desbiens v. Chaker, 2013 HRTO 297

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

K. David Simpson on behalf of Robert Desbiens

Applicant

-and-

Ahmad Chaker and George Musgrove

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend Date: February 21, 2013 Citation: 2013 HRTO 297 Indexed as: Desbiens v. Chaker

WRITTEN SUBMISSIONS

K. David Simpson on behalf of Robert Desbiens, Applicant

Self-represented

Dumaresq Child, Ahmed Chaker and George Musgrove, Respondents

Sandra G. Drozd, Counsel

Introduction

1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It was brought under s. 34(5) by David Simpson (the “applicant”) on behalf of Robert Desbiens (the “claimant”).

2This Interim Decision addresses: (1) the respondents’ request to reactivate this deferred Application; (2) the applicant’s request to remove an individual respondent (Dr. Child) and add another individual in his place (Dr. Musgrove); and (3) deferral of this Application pending the completion of the proceeding involving Dr. Musgrove.

Decision and analysis

Reactivation

3The applicant brought a related proceeding before the Health Professions Appeal and Review Board (“HPARB”) with respect to Dr. Chaker, who is named as an individual respondent on this Application. This Application was deferred on consent pending the completion of the proceeding before HPARB.

4The parties now advise that that proceeding is complete and counsel for the respondents brought a Request for Order During Proceedings (“RFOP”) asking to reactivate the Application for the purpose of conducting a Summary Hearing (although no Request for Summary Hearing (Form 26) has been filed). The applicant did not oppose reactivation.

5The parties appear to be in agreement that the HPARB decision involving Dr. Chaker was issued on or around May 2012, but that the applicant indicated at the time that he intended to judicially review the decision and so neither side moved to reactivate this Application. On October 30, 2012, counsel for the respondents wrote to say that the applicant had not taken any further steps with respect to a judicial review and the respondents wished to proceed with the previously mentioned summary hearing.

6The respondents were advised by the Tribunal that it was necessary to file an RFOP to reactivate the deferred application. This was done on November 14, 2012. The respondents did not file a copy of the decision from HPARB, which is required by Rule 14.4 of the Tribunal Rules of Procedure, at the time of the request, but have subsequently provided this. The requirements for reactivation under the Rules have been met.

7Since then, counsel for the respondents has indicated that she is not opposed to maintaining the deferred status of this Application until such time as the HPARB decision with respect to the proposed respondent, Dr. George Musgrove, is released. However, this would mean that the Tribunal was deferring the Application to a proceeding involving a non-party. Accordingly, this Application is reactivated for the purpose of adding Dr. Musgrove as a respondent.

Removing and Adding Respondents

8This Application concerns the nature of the medical treatment received by the claimant while he was incarcerated. The applicant states he was initially told that the claimant was seen by Dr. Child and Dr. Chaker. At some point after he filed his Application, the applicant discovered that Dr. Child had retired around the time of the claimant’s incarceration and, in any event, did not see the claimant.

9The applicant has asked to withdraw the Application against Dr. Child. In response to a Case Assessment Direction advising him to do this, the applicant has filed a consent form from the claimant as required by Rule 10.2. Dr. Child, Dr. Chaker and Dr. Musgrove all consent to the removal of Dr. Child. Accordingly, Dr. Dumaresq Child is removed as a respondent to this Application and the title of proceedings amended accordingly.

10The applicant states that although he was advised that Dr. Child did not see the claimant he was not told the name of the physician who attended at the correctional facility instead. Counsel for the respondents argues that the applicant, although not legally trained, is sophisticated and bore the onus for tracking down this information in a timely fashion.

11It is my view, however, that trying to ascertain whether the efforts made by the applicant were sufficient would be a waste of Tribunal resources and, ultimately, not a helpful path to pursue. I would note that the applicant’s materials reflect his intent to name and proceed against the appropriate persons.

12Moreover, the identity of Dr. Musgrove was information that the respondents (including those originally named and with whom the applicant has since settled) had more ready access to. The respondents have not provided the Tribunal with documents that show that they shared this information with the applicant early on, and that he chose to ignore it.

13It would appear from the information on file that the applicant learned of Dr. Musgrove’s identity in the fall of 2011. In his Reply, filed on December 12, 2011, the applicant noted that he wished to add Dr. George Roy Musgrove as a respondent. This request was not pursued as the matter went to mediation and then was deferred. However, on November 5, 2012 (shortly after counsel for the respondents indicated that her clients wished to reactivate the file) the applicant wrote to the Tribunal that he wanted this individual added. The applicant was advised by the Tribunal that he had to file a RFOP to do this, which he did on December 5, 2012.

14The respondents and proposed respondent have not pointed to prejudice as a result of the delay in naming him.

15The only question is whether the determination of whether to add Dr. Musgrove should be made now or after the HPARB proceeding involving him is completed. The parties have both advised that the hearing with respect to his involvement took place on January 23, 2013, and that they expect the decision from that body to be issued approximately 16 weeks later (although possibly longer).

16Since neither party has pointed to a reason for delaying the decision, and since the applicant has specifically stated that he intends to pursue the matter against Dr. Musgrove regardless of the outcome of the HPARB proceedings, it would appear to be prudent to make the determination now. Having to deal with this issue after the release of the HPARB decision will only serve to further delay the processing of this Application.

17Rule 1.7 gives the Tribunal the authority to remove or add a party. Neither party disputes that Dr. Musgrove is an integral party to the Application. Accordingly, I grant the applicant’s request to add Dr. George Roy Musgrove as a respondent to this Application.

18The pleadings will need to be amended to reflect this amendment. Indeed, Dr. Musgrove may choose to file his own Response. The parties need not do this while this matter is deferred (see below). Should this matter be reactivated, the Tribunal will establish deadlines for the filing of the amended pleadings.

Deferral

19The 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 (Rule 14.1). As noted above, the parties are in agreement that the HPARB decision involving Dr. Musgrove is likely to be issued in or about mid-May 2013. Until then, the respondents and the applicant are in agreement that this Application should be deferred pending the completion of that matter. I am of the view that once again deferral is appropriate in this case.

20The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back before the Tribunal after resolution of the proceedings before the HPARB involving Dr. Musgrove.

Order

21In sum, I have made the following orders:

a. The respondents’ request to reactivate this Application following the completion of the HPARB proceeding involving Dr. Chaker is granted;

b. The applicant’s request to remove Dumaresq Child as a respondent to this Application is granted and the title of proceeding amended accordingly;

c. The applicant’s request to add George Roy Musgrove as a respondent to this Application is granted and the title of proceeding amended accordingly;

d. This Application is deferred pending the completion of the HPARB proceeding involving Dr. Musgrove.

e. Should the parties reactivate this Application, the Tribunal will establish deadlines for the filing of amended pleadings by the parties.

22I am not seized of this matter.