Ryan v. College of Nurses of Ontario, 2014 HRTO 139

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kaitlin Ryan

Applicant

-and-

College of Nurses of Ontario and Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care and the Minister of the Attorney General

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: January 30, 2014

Citation: 2014 HRTO 139

Indexed as: Ryan v. College of Nurses of Ontario

APPEARANCES

Kaitlin Ryan, Applicant

Danielle Bisnar, Counsel

College of Nurses of Ontario, Respondent

Raj Anand and Katharine Montpetit, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care and the Minister of the Attorney General, Respondent

Taylor Ransom, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, service and facilities and membership in a vocational association because of disability. This Interim Decision addresses a Request for an Order During Proceedings (the “Request”) filed by the respondent College of Nurses of Ontario (the “College”).

Background

2The applicant is a Registered Nurse (“RN”). Following the completing of her Nursing Degree in May 2010, the applicant states that she began employment at a hospital in Toronto. In June 2010, the applicant applied for and was granted a Temporary Licence to practice as a RN. A Temporary Licence or Temporary Class registration allows individuals who meet the requirements for General Class registration (i.e. a permanent licence) to practice as nurses while they wait to write the Canadian Registered Nurse Examination (“CRNE”) or to receive their CRNE results. Pursuant to section 9(6) [now section 5.1(2)] of O. Reg 275/94 of the Nursing Act, 1991, S.O. 1991, c.32 (“Regulation 275/94”) Temporary Class registration is automatically revoked on the six month expiry date, if the individual fails the CRNE or if he or she receives General Class registration.

3The applicant states that she began to experience seizures in the summer of 2010 and continued to experience partial seizures in the fall of 2010, for which she sought treatment. The applicant states that she applied for General Class registration on or about December 15, 2010, as her Temporary Class registration expired on December 23, 2010. The application for General Class registration requires applicants to indicate whether they are affected by a condition or disorder that could affect their ability to practice nursing. Accordingly, the applicant identified that she had been diagnosed with seizures. Where an applicant for registration declares a medical condition or disorder that could affect his or her ability to practice, the applicant is required to provide information to the College to allow the College to assess the applicant’s suitability to practice nursing.

4The applicant’s Temporary Class registration was revoked on December 23, 2010 because the six month period had expired. According to the Application, the applicant learned that her licence had been revoked sometime in February 2011. Shortly thereafter, her employment was terminated because she held no class of registration with the College. The College states that it wrote to the applicant on December 29, 2010 to advise her of her status with the College and on January 11, 2011 to request information regarding her medical condition. The applicant states that she did not receive this correspondence, at least initially. The Application and the College’s Response indicate that the College granted the applicant General Registration on January 3, 2012 following back and forth communication between them. Suffice it to say that each attributes the delay to the other.

5The applicant alleges that the automatic revocation of Temporary Class registration after six months, pursuant to Regulation 275/94, has an adverse effect on those holding such a licence who declare a disability when applying for General Class registration and experience delays in the College processing of their applications, during which time their registration status is listed as “revoked”. The applicant also alleges that the College’s registration process creates a discriminatory distinction by imposing burdens on applicants for registration with disabilities or perceived disabilities. As a result, the applicant states that the respondents were obliged to accommodate her, but did not. The respondents deny that either the automatic expiry of Temporary Class registration or the College’s registration process is discriminatory. In the alternative, the respondents state that the challenged section of Regulation 275/94 is a bona fide requirement under section 11 of the Code. The respondent, Her Majesty the Queen in Right of Ontario (“Ontario”) also states that Ontario has not provided or declined to provide a service to the applicant.

The College’s Request

6The College filed the Request on November 1, 2013. The College requests that the Tribunal divide or bifurcate the hearing of this Application according to issue, with Tribunal-directed management of documentary production and witness disclosure. Specifically, the College submits that the hearing should be divided into three phases, as follows:

1. First, the Tribunal should hear the applicant’s allegations regarding the alleged delay in processing her application for General Class registration, without the participation of Ontario;

2. If necessary, the Tribunal should next conduct a hearing regarding the validity of Regulation 275/94, with Ontario participating; and,

3. If necessary, the Tribunal should conduct a hearing regarding remedy, with participation dependent on its findings of liability.

The College submits that to facilitate this phased approach to the hearing the Tribunal should make directions amending the parties’ pre-hearing disclosure obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure (the “Rules”).

7The College submits that the allegations are distinct as against the College and Ontario and will require different documents and witnesses. The College submits that without case management from the Tribunal the issues relating to the validity of Regulation 275/94 will become entangled with the factual details of the applicant’s allegations regarding her General Class registration, which would lead to a less efficient and more costly hearing. The College submits that separating the issues as it requests will limit Ontario’s participation, which will also reduce the complexity of the hearing and lower preparation costs for all parties. The College submits that a possible outcome of the first phase is that the Tribunal may find that the applicant does not have standing to challenge Regulation 275/94 at all, which would make the second phase unnecessary. Accordingly, the College submits that it would be unfair and prejudicial to require the respondents to respond to these allegations where it may prove unnecessary. The College submits that the Tribunal followed a similar procedure in other cases: DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 618, Carasco v. University of Windsor, 2011 HRTO 1931 and Khatkur v. Peel District School Board, 2012 HRTO 472.

8Ontario filed a Response to a Request for an Order on November 28, 2013. Ontario concurs with the College’s Request, but made no additional submissions in support of it.

The Applicant’s Response

9The applicant filed a Response to a Request for an Order on December 4, 2013 and opposes the Request. The applicant submits that the College mischaracterizes her claims as being “two distinct allegations” that can be dealt with separately. The applicant submits that Regulation 275/94 is a standard that adversely impacts applicants for registration with disabilities and amounts to discrimination by both Ontario, which promulgated the regulation, and the College, which is responsible for the registration process and was obliged to accommodate the applicant, but did not. Consequently, the applicant submits that the issues are not as discrete as the College suggests.

10In particular, the applicant submits that the interpretation and operation of Regulation 275/95 is directly engaged by the Application and it is impossible to sever the adjudication of the facts of the applicant’s claim from the registration process provided for in the regulation. The applicant submits that evidence regarding the purpose and history of Regulation 275/94 are relevant to all aspects of her Application, in particular whether the College’s registration process meets its obligation to accommodate applicants for registration with disabilities.

11Further, the applicant submits that the jurisprudence indicates that it is a litigant’s basic right to have all issues tried together and that bifurcation should occur only where there are compelling reasons to do so. The applicant submits that separate hearings regarding liability and remedy should only be held where the remedies sought are complex and there is minimal overlap between the evidence on these issues. In that regard, the applicant submitted that the remedies she seeks are straightforward and commonly considered by the Tribunal and are not sufficiently complex or unusual to warrant bifurcation of the hearing between liability and remedy.

Analysis and Decision

12Pursuant to section 43(3) of the Code the Tribunal may make rules governing the practice and procedure before it and Rule 1.7 of the Tribunal’s Rules of Procedure authorizes the Tribunal to determine and direct the order in which evidence will be presented. Accordingly, the Tribunal may bifurcate hearings in appropriate cases, and has done so on several occasions. For the reasons that follow, I find it is appropriate to first hear all issues related to liability together and then, if necessary, to conduct a hearing regarding liability.

13In my view, the allegations against the College and Ontario are intertwined, as the registration process administered by the College appears to arise out of Regulation 275/94 and it seems both impractical and artificial to hear the evidence about them in separate hearings. In the cases the College cited, DeFreitas, Carasco and Khatkur, above, the Tribunal ordered that evidence regarding the applicant’s particular circumstances be heard before “contextual” or systemic evidence because it was unclear if such context evidence was relevant. The evidence related to the applicant’s experience with the registration process appears to be relevant to the allegations against both respondents. Consequently, dividing the liability issues as against the respondents creates the possibility that this evidence shall be required twice, which would not be cost-effective, efficient or fair. The possibility that the Tribunal would dismiss the Application after the first phase described in the College’s Request is speculative and not a proper basis for bifurcating liability issues.

14Amongst other things, the applicant requests significant amendments to the registration process administered by the College and a declaration that the automatic revocation of a temporary licence upon expiry under Regulation 275/94 is contrary to the Code and does not satisfy the respondents’ duty to accommodate applicants for registration with disabilities to the point of undue hardship and/or that the application of section 9(6) [now section 5.1(2)] of Regulation 275/94 breached the Code in the circumstances of this Application. Consequently, some of the remedies the applicant seeks are in my view both unusual and complex and will likely require additional evidence and extensive submissions. In these circumstances, the most fair, just and expeditious process is to divide the hearing into two stages to deal first with issues of liability and second any issues relating to remedy if a violation of the Code is established.

Order

15The Tribunal orders as follows:

1. The hearing in this matter shall be bifurcated to first hear and determine all issues of liability, and then, if necessary, to hear and determine all issues relating to remedy;

2. The parties shall comply with Rule 16.1, with respect to liability issues only, within 14 days of the date of this Interim Decision; and,

3. The deadline for complying with Rules 16.2, 16.3, 17.1 and 17.2 shall remain as set out in the Notice of Hearing, i.e. March 17, 2014.