HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Peiyu Gan
Applicant
-and-
The College of Physicians and Surgeons
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Gan v. College of Physicians and Surgeons
APPEARANCES
Peiyu Gan, Applicant
Yunhong He, Representative
The College of Physicians and Surgeons, Respondent
Michelle Gibbs, Counsel
Introduction
1The applicant is an elderly woman who has experienced various health problems requiring medical treatment. Her Application is filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It alleges discrimination by the College of Physicians and Surgeons (“the College”) on the basis of disability with respect to goods, services and facilities. The allegations are with respect to complaints about the applicant’s doctors made to the College that the Inquiries, Complaints and Reports Committee (“the Committee”) of the College investigated and decided were not substantiated. The Application originally named other respondents and made claims based on other grounds. Those claims were dismissed, 2013 HRTO 1888 (“the previous interim decision”).
2The applicant’s daughter, Ms. He, filed a similar Application against the same respondents, which was dismissed in its entirety in the previous interim decision. Reconsideration was denied, 2014 HRTO 670.
3Ms. He represents her mother in this Application.
4The only remaining allegation permitted to proceed was one that Ms. He had described during a summary hearing prior to the Tribunal issuing the previous interim decision. She had stated that her mother wanted to file a complaint to the College, but someone from the College named “Mark” told her that her mother could not file a complaint because she was disabled. That allegation was summarized and directions to the applicant were made at paragraphs 52-54 of the previous interim decision:
[52] To 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 [Regulated Health Profession Act, 1991, S.O. 1991 (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.
[53] Also, 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.
[54] In 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.
5After the previous interim decision was issued, the Tribunal received particulars from the applicant, as directed. The applicant’s submissions containing the particulars appeared to concentrate on a letter dated May 29, 2011 about Dr. Edney which was attached, and which had been referred to several times in the history of both the applicant and Ms. He’s Applications, including in prior teleconference hearings which resulted in the previous interim decision.
6The applicant’s written submissions and attachments, filed by Ms. He, clarified that “Mark” was a College investigator named Mark Bellefontaine who visited the applicant on September 27, 2010. During this visit, he allegedly determined that the applicant was “incapable” because he did not, and here I use the words of Ms. He, “wait for hours to get a chance to my mother to make out her voice.” However, the submissions did not address all the issues the previous interim decision directed the applicant to address. Also, the submissions did not explain why certain documents were attached. Basically, the submissions were disorganized and unclear.
7A summary hearing was scheduled for the parties to make their oral submissions on whether subsection 36(3) or section 38 of the RHPA affected the Tribunal’s jurisdiction over the allegation that the College refused to allow Ms. Gan to file a complaint because of disability, or whether there is no reasonable prospect of success for that allegation.
8The College filed submissions after the summary hearing was scheduled, and, understandably addressed what appeared to be the details about the allegation that a College investigator and the Committee refused to allow a complaint about Dr. Edney from the applicant. The applicant did not file submissions after the summary hearing was scheduled, despite being invited to do so.
summary hearing
Applicant’s argument
9At the summary hearing, held May 21, 2014, Ms. He appeared for her mother. An interpreter assisted Ms. He when required at certain times during the hearing.
10Ms. He explained that she would testify at a hearing that the refusal by the College’s investigator to take a complaint from the applicant occurred in September or October 2010, and was with respect to a complaint about Dr. Freedman. As stated in the previous interim decision, Dr. Freedman was the subject of a written complaint to the College dated September 16, 2010, filed by Ms. He, about his treatment of the applicant.
11Ms. He explained that she would testify that she first talked to the investigator on the telephone about her mother filing a complaint, and he suggested that he visit her mother at the nursing home where she resided to determine whether she was able to “sign by herself” and file a complaint. This investigator was Mark Bellefontaine who visited the applicant on September 27, 2010, according to materials filed by the applicant. Ms. He proposes to testify that the investigator brought with him an interpreter, but he determined after 5-7 minutes that the applicant did not have the capacity to file a complaint with the College. Ms. He explained that she would testify that she urged the investigator to give her mother more time to form words to answer his questions, because she believed her mother understood everything, but speaking sometimes required more time than he was giving her. Ms. He would testify that the investigator did not give the applicant more time, and instead told Ms. He that the applicant could not file a complaint because she is disabled.
12Ms. He also explained at the summary hearing that the May 29, 2011 complaint letter from her mother to the College about Dr. Edney was refused by the College. Ms. He explained that her proof of this will be the fact that the investigator continued to describe Ms. He’s earlier complaint on behalf of her mother about Dr. Edney “as Ms. He’s complaint”, not the applicant’s complaint, even after the applicant’s May 29, 2011 letter.
13Ms. He also argued her evidence will include the fact that the letter was not mentioned in the Committee’s decision dealing with what the Committee called “Ms. He’s complaint”, not the applicant’s complaint, although Ms. He conceded at the summary hearing that the investigator acknowledged receipt of the applicant’s May 29, 2011 letter and it may have been in the package reviewed by the Committee before it made its decision about Dr. Edney’s alleged misconduct.
The College’s argument
14At the summary hearing, counsel for the College pointed out that the applicant was raising for the first time an allegation that the College refused a complaint from the applicant prior to the May 29, 2011 letter, but counsel for the College decided not to request to adjourn the summary hearing in order to prepare submissions on what is arguably a new allegation raised by the applicant.
15The College denies that it refused to accept a complaint from the applicant because she was disabled. It argues:
- that any documents which might exist for the applicant to support her claims are inadmissible before the Tribunal pursuant to s. 36(3) of the RHPA;
- that the College and its employees, including the investigator, are immune from proceedings for damages before the Tribunal pursuant to s. 38 of the RHPA; and
- that there is no reasonable prospect of success for the Application.
16The College argues that the previous interim decision has already established that s. 36(3) of the RHPA prevents the Tribunal from reviewing the Committee’s decision on Ms. He’s complaint about Dr. Edney’s treatment of the applicant. With respect to the applicant’s own complaint about his treatment of her, the College takes the position that subsection 36(3) makes inadmissible before the Tribunal all the documents upon which the applicant would need to rely to demonstrate that the College refused to treat her May 29, 2011 letter as a complaint by her, or that the Committee refused to consider it in its decision. The inadmissible documents include the letter itself, the record of investigation that was before the Committee, as well as the decision of the Committee. Consequently, the applicant would have no reasonable prospect of success in proving discrimination with respect to any refusal by the Committee to consider her May 29, 2011 letter in its deliberation of Ms. He’s complaint about Dr. Edney’s services, or with respect to any refusal to accept the May 29, 2011 letter as a complaint by the applicant instead of, or in addition to, the previously filed complaint by her daughter.
17Section 36(3) of the RHPA states:
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.
18The College also takes the position that section 38 of the RHPA provides immunity to the College and its investigator, Mark Bellefontaine, unless the applicant can establish that his actions were not done in good faith. It is the College’s position that there is no evidence that he did not act in good faith.
19Section 38 of the RHPA 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.
analysis
20The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether an application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the application or part of the application will succeed.
21In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
22As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:
The Tribunal does not have the power to deal with general allegations of unfairness. For an application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code...
Allegation Re: Complaint against Dr. Edney
23The only allegation not dismissed by the previous interim decision is that the College’s investigator refused to accept a complaint by the applicant because she is disabled. While Ms. He’s oral submissions implied that the complaint at issue is the one against Dr. Freedman, and not Dr. Edney, in so far as any allegation of discrimination about the applicant’s denial of services with respect to Dr. Edney is made, it is dismissed. The applicant, through Ms. He’s filed materials and argument, did not point to any communication with the College about the applicant’s May 29, 2011 complaint letter against Dr. Edney, or to any evidence for that matter, to support the allegation that the College refused a complaint from the applicant about Dr. Edney because she is disabled. Given this lack of evidence, and given that the College had received prior to May 29, 2011 a complaint about Dr. Edney’s same alleged misconduct from Ms. He on behalf of the applicant, a complaint that the College was processing, I cannot see how the applicant might prove that she was refused the opportunity to complain to the College about Dr. Edney because of disability unless she were to discover documents in the College or the Committee’s file. But the Tribunal proceedings constitute civil proceedings within the meaning of s. 36(3) of the RHPA, (see the previous interim decision, 2013 HRTO 1888; and K.M. v. Kodama, 2014 HRTO 526) and that section would render those documents inadmissible. I therefore find that there is no reasonable prospect of success for any such allegation.
Allegation Re: Complaint against Dr. Freedman
24With respect to the allegation that the College’s investigator would not allow the applicant to file a complaint to the College against Dr. Freedman because of her disability, the applicant intends to provide evidence through the testimony of Ms. He, about what the investigator said. I therefore cannot agree that the Application would have no reasonable prospect of success by virtue of s. 36(3) of the RHPA as argued by the College. The inadmissibility of documents under s. 36(3) would not affect the admissibility of Ms. He’s oral testimony.
25I also note that while the investigator may not be compelled under s. 36(2) of the RHPA to testify with respect to his alleged discriminatory refusal of the applicant’s complaint against Dr. Freedman, counsel for the College agrees that the legislation would not prevent the investigator testifying voluntarily as opposed to being compelled, or as opposed to being forced to produce documents. Section 36(2) states:
No person or member described in subsection (1) shall be compelled to give testimony in a civil proceeding with regard to matters that come to his or her knowledge in the course of his or her duties.
26With respect to the College’s argument that it is immune from these proceedings under s. 38 of the RHPA because the investigator acted in good faith, it is premature for me to decide whether good faith has been established. Also, to decide whether s. 38 applies, the Tribunal needs the applicant to confirm whether she is seeking damages against the College now that most of the allegations in her Application have been dismissed, and she has made clear her allegation with respect to the investigator allegedly refusing a complaint from her mother at the nursing home.
27I therefore do not dismiss the Application with respect to the allegation that the College’s investigator refused to accept a complaint from the applicant against Dr. Freedman when the investigator visited her at the nursing home. That allegation will proceed to a hearing.
directions
28Within 14 days of this Interim Decision, the applicant must confirm what she is seeking as a remedy now that her Application has been reduced to the one allegation, namely, the allegation that when the investigator visited the applicant at the nursing home, he refused to accept a complaint from her against Dr. Freedman because of her disability. All other allegations made in oral and written submissions by Ms. He as the applicant’s representative or contained in the Application are dismissed.
29If the applicant is seeking damages, at the commencement of the hearing, the Tribunal will deal with the issue of whether the investigator was acting in good faith in his dealings with the applicant at the nursing home. Evidence from the parties will be required. If the Tribunal decides that the investigator acted in good faith with respect to the allegation that the College refused to process a complaint by the applicant against Dr. Freedman, then s. 38 of the RHPA will render the College immune from the Tribunal proceeding, and the Application will be dismissed.
30If s. 38 does not apply, or if the Tribunal finds that the investigator did not act in good faith, then the parties must be prepared to adduce evidence with respect to whether the College discriminated against the applicant because she has a disability.
next step
31Within 14 days, the applicant must file with the Tribunal confirmation of what she is seeking as a remedy for the only remaining allegation.
32The Tribunal will schedule a one-day hearing and deliver to the parties a Notice of Hearing which will explain what the parties need to do prior to the hearing and which will refer the parties to the Tribunal’s website for helpful materials.
Dated at Toronto, this 8th day of September, 2014.
“Signed by”
Mary Truemner
Vice-chair```