Griffith v. Hurst, 2013 HRTO 367

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gwynfred Griffith

Applicant

-and-

David Hurst, Maggie Lalande and Joyce Phillips

Respondents

AND B E T W E E N:

Gwynfred Griffith on behalf of Neil Griffith

Applicant

-and-

David Hurst, Maggie Lalande and Joyce Phillips

Respondents

DECISION

Adjudicator: Mark Hart Date: March 4, 2013 Citation: 2013 HRTO 367 Indexed as: Griffith v. Hurst

APPEARANCES

Gwynfred Griffith, Applicant Self-represented

David Hurst and Maggie Lalande, Respondents Denyse Boulet, Counsel

Joyce Phillips, Respondents Colin Youngman, Counsel

1These are two related Applications dated August 29, 2009 and 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 in respect of services because of disability.

2The purpose of this Decision is to address the respondents’ request that these Applications be dismissed pursuant to s. 45.1 of the Code, on the basis that the substance of these Applications already has been appropriately dealt with in proceedings before the College of Physicians and Surgeons of Ontario (“CPSO”) and the Health Professions Appeal and Review Board (“HPARB”).

Procedural History

3The Applications relate to a visit made by the applicant Gwyn Griffith and the claimant Neil Griffith to a medical office on January 23, 2009 to see the respondent Dr. Hurst, and Dr. Hurst’s decision not to accept them as patients as communicated to them on January 27, 2009 by the respondent Ms. Lalande, who was the office manager. The claimant Neil Griffith is stated to suffer from acute anxiety and agoraphobia. The essence of the two Applications is the allegation that the applicant and claimant were refused as patients because Neil Griffith experienced an anxiety attack in the waiting room when he was kept waiting for his appointment while office staff celebrated a birthday. This is disputed by the respondents Dr. Hurst and Ms. Lalande, who state that they were refused as patients due to their rude and inappropriate behaviour while attending at the medical office.

4Prior to the filing of the human rights Applications, the applicant Gwyn Griffith made a complaint to the CPSO on February 3, 2009. Gwyn Griffith, who is Neil Griffith’s father, states that he subsequently spoke to a CPSO investigator and they mutually agreed that it would be more effective if he and his son proceeded through this Tribunal. As a result, the applicant’s complaint was closed on May 8, 2009. Subsequently, on November 25, 2009, Gwyn Griffith provided the CPSO with copies of his correspondence with this Tribunal. On December 23, 2009, Gwyn Griffith requested that his complaint with the CPSO against Dr. Hurst be re-opened.

5The CPSO issued the decision of its Inquiries, Complaints and Reports Committee (“ICRC”) on September 14, 2010. In its decision, the ICRC summarized Gwyn Griffith’s complaint as alleging that Dr. Hurst had behaved in an unprofessional manner towards him and his son in that Dr. Hurst and his staff, among other things, had mistreated Neil Griffith despite knowing that he suffered from severe agoraphobia and was presenting to Dr. Hurst for referral to the anxiety clinic. In the course of its investigation of the complaint, the ICRC reviewed: Gwyn Griffith’s complaint and additional correspondence and information from him; Dr. Hurst’s response and additional correspondence and information; a memorandum of the CPSO investigator’s telephone conversation with Neil Griffith; and the CPSO’s policy on ending the physician-patient relationship.

6After setting out the parties’ competing versions of the events of January 23, 2009 and stating that it had carefully considered all material before it, the ICRC concluded that Dr. Hurst had acted reasonably under the circumstances in ending the physician-patient relationship with the applicant and claimant. In considering the competing versions of events, the ICRC stated:

Mr. Griffith has expressed concern about Dr. Hurst based on the latter’s refusal to accept Mr. Griffith and his son as patients. Dr. Hurst has denied the allegations made by Mr. Griffith. Information in Dr. Hurst’s record provides support for his version of events while there is no independent information to support Mr. Griffith’s interpretation of his interactions with Dr. Hurst and his staff in January 2009. The Committee therefore accepts that Dr. Hurst acted reasonably under the circumstances.

7In a letter received by HPARB on October 13, 2010, Gwyn Griffith requested that HPARB review the ICRC’s decision.

8By letter dated October 22, 2010, the respondents sought deferral of consideration of the Applications before this Tribunal pending a resolution of proceedings underway before HPARB. After ordering further disclosure and requesting submissions from the parties, the request for deferral was granted by Interim Decision dated May 20, 2011 (2011 HRTO 1019).

9On May 24, 2011, a hearing was held before HPARB at which Gwyn Griffith and counsel for Dr. Hurst made oral submissions. HPARB released its decision on August 3, 2011, by which it referred the matter back to the ICRC for further investigation and re-consideration of its original decision. HPARB concluded that the ICRC had conducted an inadequate investigation into Gwyn Griffith’s complaint because: the ICRC’s investigation and decision had focused on the termination of the physician-patient relationship rather than on Neil Griffith’s mental health issues; the ICRC failed to investigate Gwyn Griffith’s allegations that he and his son were treated improperly as set out in his submissions to the Human Rights Tribunal and in his correspondence with the ICRC; the ICRC failed to interview a material witness as part of its investigation; and the ICRC failed to consider why Dr. Hurst’s records were dated in October 2009 when the appointments were on January 23, 2009.

10Pursuant to the HPARB decision, the ICRC conducted further investigation and re-considered the matter, issuing its further decision on March 27, 2012. In this decision, the ICRC indicated that it had considered additional information provided by Gwyn Griffith and Dr. Hurst and set out the information gathered from its further investigation, which included interviewing the material witness as directed by HPARB and obtaining Dr. Hurst’s explanation for the dating of his notes. Of significance for this Tribunal, the ICRC reached the following conclusions:

a. There was available information in the medical record to support Dr. Hurst’s position that Gwyn and Neil Giffith were terminated from Dr. Hurst’s practice because there was a concern about behaviour that was perceived as rude and aggressive;

b. Even though an anxiety problem could explain some of Neil’s behaviour as indicated in the medical record, it would not explain everything about his behaviour as reported by Dr. Hurst and supported by his medical record of the visit;

c. There is no information to establish that Dr. Hurst failed to adequately accommodate Neil or that he terminated the physician-patient relationship for any inappropriate reason related to Neil’s illness; and

d. A previous panel of the ICRC had reviewed and found appropriate Dr. Hurst’s termination of the relationship with the Griffiths based on the reasons set out in Dr. Hurst’s initial response, and the current panel found no additional information to suggest that the previous panel was incorrect in its decision to take no further action.

11While Gwyn Griffith wrote to HPARB to express his displeasure with the ICRC’s further decision, he did not exercise his statutory right to make a further request for review by HPARB.

12On May 11, 2012, the applicant filed a Request to Reactivate the deferred Applications. By Interim Decision dated June 14, 2012 (2012 HRTO 1180), this Tribunal granted the request to re-activate the deferred Applications on the basis that the other proceeding had reached its conclusion. It was stated in this Decision that the Tribunal would consider as a preliminary issue whether the Applications should be dismissed pursuant to s. 45.1 of the Code on the basis of the CPSO and HPARB proceedings.

13A teleconference hearing was held on October 18, 2012 to hear oral submissions from the parties regarding this preliminary issue. At the commencement of the hearing, Gwyn Griffith objected to consideration of the issue of whether the Applications should be dismissed as against Joyce Phillips on the basis that his allegations against her were not addressed by the CPSO or HPARB. I indicated that he could make this submission in response to the submissions made by counsel for Ms. Phillips. During the respondents’ reply submissions, Gwyn Griffith interjected inappropriately and I directed him not to do so. Gwyn Griffith then stated that he was going to discontinue the call. I advised him that as a party to the proceeding, he was free to decide for himself whether to continue to participate in the hearing, but that the hearing would proceed in his absence if he hung up the phone. Gwyn Griffith stated that he had participated in the hearing and hung up the phone, and the hearing continued and concluded in his absence.

Analysis and Decision

14Section 45.1 of the Code states:

The Tribunal may dismiss an Application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

15Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application”.

Was there another “proceeding”?

16Legislation establishes a comprehensive statutory scheme for adjudicating complaints arising from the relationship between patients and physicians in Ontario. Pursuant to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended (“RHPA”), Complaints Committees are established to receive and investigate complaints related to each of the Province’s self-governing health professions, including the medical profession through the CPSO. Schedule 2 of the RHPA provides a Procedural Code governing the processes to be followed by the self-governing health professions, including the CPSO’s Complaints Committee.

17The RHPA establishes HPARB as an adjudicative body with statutory powers of review. HPARB has the power to review decisions of the various health professions’ Complaints Committees.

18In British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), the Supreme Court of Canada considered a provision in British Columbia’s human rights legislation which is similar to s. 45.1 of the Code, and the principles set out in that decision apply to s. 45.1. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.

19At para. 49 of Figliola, the Court stated the following with respect to British Columbia’s Human Rights Tribunal:

To begin, it questioned whether the Review Division’s process met the necessary procedural requirements. This is a classic judicial review question and not one within the mandate of a concurrent decision-maker. While the Tribunal may inquire into whether the parties had notice of the case to be met and were given an opportunity to respond, that does not mean that it can require that the prior process be a procedural mimic of the Tribunal’s own, more elaborate one…

… As long as the complainants had a chance to air their grievances before an authorized decision-maker, the extent to which they received traditional “judicial” procedural trappings should not be the Tribunal’s concern.

20A complaint determined by the Complaints Committee established by the CPSO has been determined by this Tribunal to constitute a “proceeding” within the meaning of the Code. See V.N. v. Bartlett, 2012 HRTO 1947; Magda v. Jaroszynski, 2010 HRTO 1342.

21In the instant case, Gwyn Griffith made his complaint to CPSO and had an opportunity to file further materials and make further submissions. His son Neil was interviewed by the CPSO investigator. Gwyn Griffith was aware of Dr. Hurst’s position in response to his complaint, at the very least as a result of receiving Dr. Hurst’s letters of March 1 and April 7, 2009 and by being provided with Dr. Hurst’s Response to the human rights Applications. Gwyn Griffith was unsatisfied with the ICRC’s initial decision, and exercised his statutory right to seek review by HPARB, where he was afforded an opportunity to file further materials, including the human rights Applications, and to make oral submissions. He was successful in having the matter remitted back to the ICRC for further investigation and consideration, and in that context provided further materials and submissions. He had the right to seek further review by HPARB, although this right was not exercised.

22Given these circumstances, and applying the language used by the Supreme Court of Canada in Figliola, supra, I am satisfied that Gwyn Griffith had the chance to air his grievances before the ICRC and HPARB as authorized decision-makers, and had notice of the case to be met and an opportunity to respond. While it is true that Gwyn Griffith did not have an oral hearing before the ICRC or an opportunity to testify in person as to his version of events or cross-examine Dr. Hurst, the Supreme Court of Canada has clearly stated that this Tribunal is not to require that another statutory decision-maker adopt a process that is a procedural mimic of this Tribunal’s own, more elaborate one, and that the extent to which Gwyn Griffith received traditional “judicial” procedural trappings in the ICRC and HPARB process should not be this Tribunal’s concern.

23Accordingly, I find that the processes resulting in the decisions of the ICRC and HPARB in the instant case were “proceedings” within the meaning of s. 45.1 of the Code.

Was the substance of the Application “appropriately dealt with”?

24As a result, the only remaining issue is whether the substance of the present Applications was appropriately dealt with by the ICRC.

25In Figliola, at para. 34, the Court summarized the principles as follows:

• It is in the interests of the public and the parties that the finality of a decision can be relied on;
• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings;
• The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature;
• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision; and
• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.

26The Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding. See Robinson v. Spanish (Town), 2009 HRTO 1484.

27The Tribunal may dismiss an application under s. 45.1 even if the other proceeding found to have dealt appropriately with the allegations did not specifically make a finding about an alleged Code violation. See Gidopoulos v. Weston Bakeries, 2011 HRTO 1925.

28As stated by this Tribunal in Paterno v. Salvation Army, 2011 HRTO 2298 at para. 25:

This Tribunal has emphasized throughout its jurisprudence on s. 45.1 that in applying the section, the analysis should not be technical, but should focus on the goals of preventing relitigation of the substance of issues decided elsewhere. Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the Application must be dismissed. For example, in Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal found that the analysis applied by the Special Education Tribunal in an appeal under the Education Act, R.S.O. 1990, c. E.2, as amended, appropriately dealt with issues under the Code, because the essence of the analysis was the same even if the Code was not directly applied. In Qiu v. Neilson, 2009 HRTO 2187, the Tribunal found that where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed even if the other proceeding did not specifically apply the Code. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that where a party settled a previous proceeding that included the essence of the human rights matter, the Application should be dismissed under s. 45.1. In Cunningham v. CUPE 4400, 2011 HRTO 658, a complainant who narrowed the allegations in the previous proceeding to exclude human rights issues was precluded from later pursuing the human rights issues at the Tribunal. If there is a legal or factual finding in a previous proceeding, whether explicit or implicit, that makes it impossible for an application or part of an application to succeed, the application or part must be dismissed.

29In the instant case, the substance of the Applications before this Tribunal is the allegation that Dr. Hurst ended the physician-patient relationship with Gwyn and Neil Griffith due to conduct on the part of Neil Griffith that is alleged to be attributable to his mental disabilities of anxiety and agoraphobia, and as a result, they did not get a referral from Dr. Hurst to a social worker who could assist Neil. While not technically set out in his Application in these terms, the allegation of a violation of the Code by Gwyn Griffith is that he suffered adverse treatment because of his association with his son Neil who is a person identified by the prohibited ground of disability, as protected pursuant to s. 12 of the Code. While I appreciate that Gwyn Griffith is not seeking through these Applications for him or his son to now be accepted as patients by Dr. Hurst, particularly since they subsequently were able to obtain the services of another family physician in the area, the allegation of discrimination as raised in the Application nonetheless relates to Dr. Hurst’s decision to end the physician-patient relationship.

30This is squarely the issue that was determined by the ICRC in its initial decision. As set out above, the ICRC in its decision reviewed the competing explanations provided by Dr. Hurst and Gwyn Griffith as to the reason why Dr. Hurst ended the physician-patient relationship with Mr. Griffith and his son, and accepted Dr. Hurst’s explanation as it was supported by his clinical notes. I appreciate that the conflicting versions of events as raised by Gwyn Griffith and Dr. Hurst raise an issue of credibility, and that the ICRC process did not include an opportunity for Mr. Griffith or his son to testify before the committee in person or to cross-examine Dr. Hurst. However, as stated by the Supreme Court of Canada in Figliola, supra, that is not an issue that is appropriate for me to consider.

31As a result of the HPARB review, the ICRC subsequently re-visited the matter and squarely considered the issues raised under the Code. The human rights Applications were before both HPARB and the ICRC at the time of the committee’s second decision, and the ICRC explicitly followed HPARB’s direction to consider the human rights issues. While framed in part as an issue as to whether Dr. Hurst appropriately accommodated Neil Griffith’s disability, the “accommodation” issue in my view is essentially the same as the allegation of discrimination in relation to the ending of the physician-patient relationship. The allegation is that Neil Griffith’s conduct on the day of his appointment is attributable to his mental disabilities, and that Dr. Hurst and his staff ought to have considered and made allowance for that. However, in reviewing the evidence as a whole and while acknowledging that Neil’s mental disabilities may have played some role in his conduct that day, the ICRC determined that there were other non-discriminatory reasons for Dr. Hurst’s decision.

32I understand that Gwyn Griffith does not agree with the ICRC’s decisions. But it is not my role under s. 45.1 of the Code to re-weigh the evidence considered by the ICRC or to decide whether I would have come to the same conclusion. My role is limited to considering whether the substance of the Applications already was appropriately dealt with in the proceedings before the ICRC and HPARB, within the context of the principles established by the Supreme Court of Canada in Figliola and this Tribunal’s caselaw. In applying these principles, I find that the ICRC and HPARB did squarely address the substance of the allegations raised in the Applications and therefore appropriately dealt with the substance of the Applications.

33While the ICRC and HPARB addressed the allegations as against Dr. Hurst, the issue is raised as to whether this also extends to the other two respondents. Dealing first with Ms. Lalande, there is no doubt that she is not a physician and is therefore not subject to the CPSO or the ICRC. At the teleconference hearing, it was submitted by counsel for Ms. Lalande and Dr. Hurst that Dr. Hurst would be held to be responsible by the CPSO for the conduct of his staff. I asked for any authority to support this position, and was referred to section 1.2 of O.Reg. 856/93 under the Medicine Act, 1991, S.O. 1991, c. 30, which includes as an act of professional misconduct “failing to maintain the standard of practice of the profession”.

34It is not clear to me that this provision in the regulation operates to make a doctor responsible for the conduct of his staff. However, as stated above in the quotation from the Paterno decision, where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed: Qiu v. Neilson, 2009 HRTO 2187. In the instant case, the ICRC made a factual finding whereby the committee preferred the version of events provided by Dr. Hurst and accepted his non-discriminatory reasons for ending the physician-patient relationship with Gwyn and Neil Griffith. In light of this factual finding, I find that a finding of discrimination against Ms. Lalande would be precluded, as Dr. Hurst relied upon the observations of Ms. Lalande and other staff members, along with his own, in making the decision to end the physician-patient relationship. Accordingly, I find that the proceedings before the ICRC and HPARB also appropriately dealt with the substance of the Applications as against Ms. Lalande.

35This leaves the allegations as against Ms. Phillips. Ms. Phillips is the Executive Director of the Kingston Family Health Team (“KFHT”). KFHT employs support staff and allied health professionals such as nurse practitioners, social workers and psychologists. KFHT’s role is to provide services and health care that supports or supplements the health care provided by family physicians. The family physicians that KFHT supports are either separately incorporated companies or practice together with other family physicians. Collectively, the family physicians form an organization called the Kingston Family Health Organization (“KFHO”).

36In her Response to the Application, Ms. Phillips states that family physicians such as Dr. Hurst practice independently from KFHT, and KFHT does not employ or in any way supervise or oversee the practices of family physicians. Rather, KFHT receives referrals from family physicians for the health related services it provides. These health related services can only be provided by KFHT if a person first becomes a patient of a KFHO physician and receives a referral.

37In her Response, Ms. Phillips further states that family physicians have complete autonomy over their practices, including whether to accept or refuse new patients. She states that KFHT does not have any power either to require a family physician to accept a new patient or to address any denial of services by a family physician to a patient. She states that KFHT further does not have any authority or power to intervene in the event of issues or conflict between a patient and his or her family physician.

38Ms. Phillips’ only involvement in this matter is as a recipient of a letter from Gwyn Griffith dated June 16, 2009. This letter is addressed to Ms. Phillips as Executive Director of KFHO, which she is not. As indicated above, KFHO is an organization of family physicians. Ms. Phillips is the Executive Director of KFHT, which is a different and separate body. Mr. Griffith’s letter is stated to be a formal complaint, and raises the same allegations about how he and his son were treated by Dr. Hurst, Ms. Lalande and other staff at Dr. Hurst’s office as are raised in the Applications. In this letter, Mr. Griffith states that he had been in touch with this Tribunal and was in the process of preparing a formal complaint. He states that he had only just learned that Ms. Phillips is the Executive Director of KFHO (which is not correct) and “possibly our last chance of resolving this locally before proceeding further”. Mr. Griffith concludes by stating: “Failing receipt of an apology and the same access to the services of the KFHO as any other resident, we will continue to pursue this until we receive vindication”.

39Ms. Phillips states in her Response that she did not respond to the letter because there was nothing she could do in her role as Executive Director at KFHT to resolve Mr. Griffith’s complaints about Dr. Hurst.

40As indicated above, Gwyn Griffith had originally filed a complaint with the CPSO in early February 2009 raising the same issues as he raised in his letter to Ms. Phillips. While the CPSO’s file was closed in May 2009 with Mr. Griffith’s consent, his complaint was re-opened in December 2009 at Mr. Griffith’s request and after the two human rights Applications had been filed. Mr. Griffith’s complaint to the CPSO raised substantially the same allegations as set out in his letter to Ms. Phillips. In my view, my finding that the substance of the Applications was appropriately dealt with through the proceedings before the ICRC and HPARB, which were based upon the complaint made by Mr. Griffith to the CPSO, results in the conclusion that his allegations as raised with Ms. Phillips also have been appropriately dealt with. As a result, I find that there is no proper basis to continue the Applications as against Ms. Phillips.

41For all of the foregoing reasons, the Applications are dismissed.