HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christianne Gauthier
Applicant
-and-
Dr. Bernstein Diet and Health Clinics
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Gauthier v. Dr. Bernstein Diet and Health Clinics
WRITTEN SUBMISSIONS
Christianne Gauthier, Applicant
Chantal Tie, Counsel
Dr. Bernstein Diet and Health Clinics, Respondent
Chris Foulon, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Reprisal is also alleged. The Application is due to be heard on November 17 and 18, 2014.
2The respondent requests dismissal of the reprisal allegation in advance of the hearing. This Interim Decision explains why that request is being denied.
background
3The applicant is a nurse and a member of the College of Nurses of Ontario ("the College"). She was hired to work on a contract basis at one of the clinics operated by the respondent on August 7, 2012. Shortly thereafter she moved to another one of the respondent's clinics because a permanent position had opened up. The respondent terminated the applicant's employment at this clinic on September 19, 2012, which was during her probationary period.
4The applicant's position is that the termination was discriminatory because the respondent failed to accommodate a disability she has. The respondent says that her employment ended because she was not competent to do the job.
5After ending the applicant's employment, the respondent reported the termination to the College. The College commenced an investigation into the applicant's fitness to practice as a nurse.
6The applicant alleges that the respondent's action in filing a report with the College was both discriminatory and a reprisal, contrary to the Code. The respondent says that it was under a statutory obligation to file the report, that it is not responsible for any actions taken by the College as a result of having filed the report, that documents prepared for and used by the College in an investigation are inadmissible in this Application; and that the allegation relating to the filing of the report should therefore be dismissed.
the relevant statutory provisions
7Amongst other health professions, the Regulated Health Professions Act, 1991, S.O. 1991, c.18 (the "Act") regulates both medicine and nursing. The Health Professions Procedural Code ("the HPP Code") is a schedule to the Act and forms part of it.
8The HPP Code defines incompetence as follows:
- (1) A panel shall find a member to be incompetent if the member's professional care of a patient displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that the member's practice should be restricted.
9Where a member of a College is an employee and the employer terminates the member's employment for reasons of incompetence, the employer is obliged to report this to the Registrar of the College. The relevant sections of the HPP Code read:
85.5 (1) A person who terminates the employment or revokes, suspends or imposes restrictions on the privileges of a member or who dissolves a partnership, a health profession corporation or association with a member for reasons of professional misconduct, incompetence or incapacity shall file with the Registrar within thirty days after the termination, revocation, suspension, imposition or dissolution a written report setting out the reasons.
... (3) This section applies to every person, other than a patient, who employs or offers privileges to a member or associates in partnership or otherwise with a member for the purpose of offering health services.
10The HPP Code protects the person doing the reporting in the following manner:
85.6 No action or other proceeding shall be instituted against a person for filing a report in good faith under section 85.1, 85.2, 85.4 or 85.5.
11If documents are prepared for a proceeding under the Act, then there is an absolute bar on their use in any other civil proceeding. Subsection 36(3) the Act 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. 1991, c. 18, s. 36 (3); 1996, c. 1, Sched. G, s. 27 (2).
the positions of the parties
12The respondent says that its decision to file a report with the College was not a discretionary decision. It was obliged by the HPP Code to file a report after it had decided to terminate the applicant's employment on grounds of incompetence. As a result, its reporting cannot be construed as discriminatory or a reprisal. The respondent maintains that the immunity provision in s.85.6 of the HPP Code operates to bar this allegation.
13It argues in the alternative that the report and any proceedings of the College are inadmissible at the hearing of this Application by virtue of s. 36(3) of the Act.
14The applicant does not contest the fact that the report is inadmissible because of s. 36(3). However, she argues that it is still open to her to try to demonstrate that the respondent's decision to file a report with the College was discriminatory and a reprisal. She maintains that while the report may be inadmissible, the fact that it was made is not. She further argues that the immunity provided by s. 85.6 of the HPP Code applies only to actions taken in good faith. In this case, says the applicant, the filing of the report was an act of bad faith. From this it follows that the allegation should not be dismissed without evidence being heard on the point.
analysis
15I conclude that the allegation should not be dismissed without hearing evidence on this issue. Subsection 85.6 the HPP Code contemplates the possibility of a civil action where a report under the HPP Code was made in bad faith. In other words, the statutory immunity from suit is a qualified immunity. As a matter of statutory interpretation, if the Legislature had intended to provide blanket immunity from suit, it would not have included the words "...in good faith" in s. 85.6.
16The Ontario Court of Appeal addressed this issue in Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461. In that case the Court allowed a suit that was predicated on the bad faith exception to s. 85.6 to proceed. The Court makes it clear that it is possible for the suit to proceed while still respecting the absolute bar on the use of documents that are inadmissible by virtue of s. 36(3) of the Act. At para. 29 the Court states as follows:
However, for the purpose of this case and the interpretation of s. 85.6 of the Code, Finney makes it clear that the good faith limitation on immunity is to be given effect by the courts. It follows, therefore, that where a claim asserts bad faith, as long as it can be proved without running afoul of s.36(3), such a claim is not to be struck out at the pleading stage. [Emphasis in original]
17The Court goes on (at para. 35) to differentiate between dismissing an allegation outright and the evidentiary difficulties associated with proving the allegation when certain key documents are inadmissible because of s. 36(3) of the Act:
The exclusion from evidence of the complaint will clearly pose a practical problem for Pouget's bad faith claim. She will have to prove bad faith without being able to refer to the contents of the complaint itself except to the extent that the substance of the complaint can be inferred from the background documents. That, however, is a practical problem of proof and not a legal barrier that would justify dismissing the action at the pleading stage.
18The same applies here. The report to the College is inadmissible because of s. 36(3) of the Act (see K.M. v. Kodama, 2014 HRTO 526, McLean v. Riverside Health Care Facilities Inc., 2014 HRTO 971 and RA v. Dr. Raza Khan Medicine Professional Corporation, 2014 HRTO 1274. There may be other evidence that is inadmissible for the same reason. That will depend upon how the applicant attempts to prove that the decision of the respondent to report her was made in bad faith. Ultimately that is a question that is to be decided at the hearing.
19However, the challenges the applicant may face in this regard are evidentiary ones. The allegation is not barred by s. 85.6 of the HPP Code and can therefore proceed.
order
20The request to dismiss the allegation of reprisal is denied.
Dated at Toronto, this 28th day of October, 2014.
"signed by"
Paul Aterman
Vice-chair