Alex Kelly v. Ross Memorial Hospital, 2014 HRTO 1692

Human Rights Tribunal of Ontario

B E T W E E N:

Alex Kelly Applicant

-and-

Ross Memorial Hospital Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: November 24, 2014 Citation: 2014 HRTO 1692 Indexed as: Kelly v. Ross Memorial Hospital

WRITTEN SUBMISSIONS

Alex Kelly, Applicant Self-represented

Ross Memorial Hospital, Respondent Amy Tibble, Counsel

1This is an Application dated December 2, 2013, and completed January 15, 2014, alleging discrimination with respect to services because of disability, gender identity and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The Application arises out of the events of August 15, 2013, when the applicant brought his adult daughter to the emergency department of the respondent Hospital. The applicant alleges variously that: his needs arising out of a scent allergy and a brain injury were not appropriately accommodated; his family status as the patient's father was not appropriately recognized; he was treated differently than women who previously had taken his daughter to the Hospital due to his gender identity as a man; he may also have experienced discrimination due to gender identity because he is a man who had transitioned from being a woman; and his concerns were not appropriately addressed when he followed up with Hospital management about his experience.

3This Interim Decision is written to address two Requests for Order filed by the respondents: first, to strike the Reply filed by the applicant on the basis that it raises new allegations; and second, to remove the personal respondents. Having reviewed the file in this matter, I also will address issues relating to disclosure of documents.

Request to strike Reply

4By Request for Order dated August 7, 2014, the respondents seek to strike the Reply filed by the applicant on April 16, 2014, on the basis that it constitutes an attempt to add new allegations that were not in the Application. Prior to the applicant's Reply being filed, the applicant wrote correspondence to the Tribunal requesting an extension to file his Reply and making reference to a new alleged incident of discrimination arising out of his interactions with the respondent Hospital as a result of the hospitalization of his daughter from March 13 to 16, 2014. The respondents wrote to state that they did not object to the granting of an extension, but wanted an opportunity to respond in writing if the applicant raised any new allegations.

5By correspondence dated April 4, 2014, the Tribunal advised the applicant that if it was his intention to add new allegations that were not in his initial Application, then he would need to complete and file a Request for Order seeking an amendment to his Application. The applicant did not do so, but instead simply filed his Reply and included reference to new allegations arising from the events of March 13 to 16, 2014.

6The applicant has not filed any Response to Request for Order in response to the respondents' request.

7The respondents are quite right that a Reply is not the place to be raising new allegations for the first time. While I appreciate that the events at issue that have led to the new allegations occurred after the original Application was filed, the proper process, as indicated to the applicant, is to file a Request for Order seeking to amend his Application to include the new allegations, which would then, if granted, afford the respondents with an opportunity to respond.

8Having said that and having reviewed the applicant's Reply, there are significant portions of the Reply that represent proper Reply and address the original incident of August 15, 2013 and its aftermath. As a result, it is not appropriate in my view to strike the applicant's Reply in its entirety. In my view, the following paragraphs of the applicant's Reply raise new allegations relating to the events of March 13 to 16, 2014 which do not properly form part of the Reply and are hereby struck: paras. 10, 12 to 32, 36, 38 to 42, 47 (starting with "and as of March 13, 2014 . . .), 76 (reference to "and then again March 13-16"), 82 (reference to "March 2014"), 95 to 96, 102 to 105, 112, 136 (starting with "yet, why is RMH not asking Erin . . ."), 139, and 147 (reference to "I tried to fend this March and April situation from ever happening").

9I also strike paras. 9 and 140 as being improper references to settlement or mediation efforts.

10If the applicant intends to raise allegations regarding an alleged violation of his rights under the Code arising out of the events of March 13 to 16, 2014 in the context of this ongoing proceeding, then he is directed to serve on respondent counsel and file with the Tribunal a Request for Order during Proceedings (Form 10) requesting to amend his Application and setting out the details of how he is alleging that his rights under the Code, as opposed to his daughter's rights, were violated by the respondent Hospital arising out of the events of March 13 to 16, 2014. He is directed to do so by no later than December 8, 2014, given the pending hearing dates in this matter scheduled for February 2015.

Request for removal of personal respondents

11The respondents request that the personal respondents named in the Application be removed as parties to this proceeding, relying upon the test established in Persaud v. Toronto District School Board, 2008 HRTO 31. They note that the respondent Hospital is a corporate respondent alleged to be liable for the same conduct, that no issue is raised as to the Hospital's deemed or vicarious liability for the personal respondents' conduct, that there is no issue as to the ability of the Hospital to respond to or remedy any alleged Code infringement, that no prejudice would be caused to any party if the personal respondents were removed, and that no compelling reason exists to continue the proceeding as against the personal respondents.

12The respondents note that none of the named personal respondents were directly involved in the events of August 15, 2013, and they were only involved as participants to a conference call with the applicant following these events to hear and try to resolve his concerns.

13While the applicant did not file a formal Response to this Request, he did address the respondents' position that the personal respondents should be removed in his Reply. He objects to this request on the basis that on the conference call to address his concerns, they continued a pattern of alleged discriminatory behaviour towards him and created further barriers for him.

14While I have read the applicant's concerns about how he says he was treated during the course of the conference call, it is my view that the issue of the conference call is largely ancillary to the principal allegations raised in the Application, which relate to the events of August 15, 2013. I also note that the named personal respondents are all in higher-level management positions at the Hospital, and were acting in the course of their roles and responsibilities when dealing with the applicant and his concerns. In these circumstances, it is my view that there is no compelling reason to continue this proceeding as against the personal respondents.

15The respondents' request for removal of the personal respondents is hereby granted.

Disclosure

16In reviewing the file in this matter, I am aware of correspondence from respondent counsel to the applicant dated August 19, 2014, in which counsel raises that the applicant has not complied with his obligation to make disclosure of all arguably relevant documents in his possession, and the applicant's response of August 22, 2014.

17While the applicant may not intend to rely on materials beyond what he has described in his correspondence of August 22, 2014, his obligation to disclose all arguably relevant documents extends beyond those documents or materials upon which he intends to rely at the hearing. For example, arguably relevant documents in the applicant's possession would include:

a. All e-mail correspondence between the applicant and the Hospital regarding the events of August 15, 2013, his concerns about those events, the conference call of September 10, 2013, and the proposed treatment plan for his daughter;

b. All materials sent or received by the applicant regarding his needs or his daughter's care during this period, including the document he sent regarding Doose Syndrome;

c. Any personal notes the applicant or anyone else present to assist him may have made regarding the events of August 15, 2013, the conference call of September 10, 2013 or other related events;

d. Medical documentation supporting that the applicant has a scent allergy and any needs he may have arising from any such allergy;

e. Medical documentation supporting that the applicant has a brain injury or any other medical condition that he alleges was not properly accommodated by the respondent Hospital in the context of the events of August 15, 2013, the conference call of September 10, 2013, or other related events, and any needs he may have due to brain injury or any other medical condition at issue; and

f. Any other documents in his possession that relate to the events of August 15, 2013, the conference call of September 10, 2013, or other related events.

18The applicant is directed to comply with his disclosure obligations under the Rules by making a list of all such relevant documents in his possession and providing this list and a copy of all such documents to respondent counsel by no later than December 8, 2014.

ORDER

19For the foregoing reasons, I hereby make the following order:

a. The respondents' request to strike the applicant's Reply is granted in part, and portions of the Reply are struck as set out in paras. 8 and 9 above;

b. The respondents' request for removal of the personal respondents is granted and the title of proceeding has been amended accordingly;

c. By no later than December 8, 2014, the applicant shall do the following:

i. If he intends to raise allegations regarding an alleged violation of his rights under the Code arising out of the events of March 13 to 16, 2014 in the context of this ongoing proceeding, then he shall serve on respondent counsel and file with the Tribunal a Request for Order during Proceedings (Form 10) requesting to amend his Application and setting out the details of how he is alleging that his rights under the Code, as opposed to his daughter's rights, were violated by the respondent Hospital arising out of these events; and

ii. He shall serve on respondent counsel a list of all relevant documents in his possession as described in para. 17 above, and a copy of all such documents.