Ryan v. College of Nurses of Ontario, 2014 HRTO 571

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

-and-

Ontario Nurses Association Intervenor

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: April 23, 2014 Citation: 2014 HRTO 571 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

Ontario Nurses Association, Intervenor Kate Hughes, 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 filed by the respondent College of Nurses of Ontario (the “College”) seeking a procedural order in advance of the hearing, scheduled to commence on April 30, 2014.

Background

2As noted in previous Interim Orders in this matter, the applicant asserts that section 5.1 (2) [formerly section 9 (6)] of O. Reg 275/94 of the Nursing Act, 1991, S.O. 1991, c. 32 ("Regulation 275/94") creates a temporary class registration for qualified applicants for registration that is automatically revoked after six months. The applicant alleges that this automatic revocation and the College’s registration process adversely affect applicants with disabilities and does not provide for individual accommodation. The respondents deny that either the regulation or the College’s processes are discriminatory and also assert that the section of the regulation in question is a bona fide qualification under section 11 of the Code.

The Request

3On April 3, the College filed a Request for an Order During (“the Request’) proceedings seeking the following procedural orders:

a. A direction that the College’s motion to dismiss the Application will be heard at the outset of the scheduled hearing dates;

b. In the alternative, an order that the first three days of the hearing be used to determine whether the Applicant has made out a case of discrimination against the College arising from the factual allegations contained in the Pleadings;

c. An order requesting that certain witness statements be struck as irrelevant;

d. In the event the Applicant’s allegations regarding the College’s Declaration of Registration Requirements Form (the “Declaration Form”) and the requirement of an applicant to disclose a physical or mental condition or disorder are deemed to form part of the Pleadings, an order striking the allegation as disclosing no prima facie case of discrimination.

4The College summarized the procedural history of this proceeding, including the Tribunal’s decision to deny the College’s request for a summary hearing. The College noted that it reserved the right to make another request to dismiss the Application on the basis of the applicant’s revised theory of her case following the exchange of pre-hearing disclosure. The College submitted that the witness statements provided by the applicant do not support her allegations that the College acted in a discriminatory manner or that it failed to accommodate her needs. The College submitted that the applicant’s allegation amount to claims of unfairness without a link to a prohibited ground of discrimination, which are outside of the Tribunal’s jurisdiction. In the alternative, the College submitted that the three hearing days currently scheduled should be used to hear the applicant’s evidence regarding her allegations against the College. The College submitted that this will be a more cost-effective, efficient and fair use of the hearing days already scheduled, as it will focus the hearing on the actual crux of the hearing.

5The College submitted that the Tribunal should strike the witness statement of Ms. J. Ryan, RN and Ms. S. Robinson, RN, in whole or part and should strike the witness statements of Mr. J. Almeida and Ms. V. MacDonald in their entirety. The College submitted that the witness statements of each of these four witnesses indicate that they will testify about on remedial issues, including the impact on the alleged events on the applicant’s career and her attempts to find employment. The respondent noted that the Tribunal held in a previous Interim Decision, that it would bifurcate the hearing to first hear all issues related to liability, and then, if necessary, conduct a hearing regarding remedy. The College therefore submitted that this evidence is inappropriate at this stage of the proceeding and can be called at the remedial phase of the hearing, if any.

6The College also submitted that the proposed evidence of Ms. MacDonald (to the extent it is not related to remedial issues), Ms. R. Ciavaglia, RN, and/or Ms. S. Ruddock is irrelevant to the proceedings. The College submitted that their proposed evidence will be in respect of the operation of ONA’s collective agreements and ONA’s experience with the College’s registration process. The College submitted that this Application is unlikely to have any effect on ONA’s collective agreements and that the experiences of other nurses with the registration process or ONA’s perspective will not be helpful in determining this Application.

7The College submitted that the applicant did not make allegations regarding the Declaration Form or the requirement to declare a physical or mental condition in either the Application or her Reply and are therefore not properly before the Tribunal. Assuming the Tribunal accepts the allegations regarding the Declaration Form as forming part of the pleadings, then the respondent submitted that such allegations do not give rise to a prima facie case of discrimination and must be struck. The College submitted that requiring prospective nurses to identifying conditions that may affect their ability to safely practise is part of the College’s statutory mandate to protect public safety and is not in itself discriminatory. The College submitted that this requirement could only be improper if it is used in a discriminatory manner, of which the applicant has submitted no evidence.

8The respondent Her Majesty the Queen in Right of Ontario ("Ontario"), filed a Response to a Request for an Order in which it states that it supports the College’s Request for the reasons set out by the College.

The Responses

The Applicant

9The applicant filed a Response to a Request for an Order on April 17, 2014 setting out her opposition to the Request. The applicant submitted that the request to hear the College’s proposed motion to dismiss the Application or to hear evidence only with respect to the College’s alleged liability amounts to an abuse of process. The applicant submitted that the Tribunal dismissed the College’s Request for a Summary Hearing and denied the College’s request to bifurcate the liability phase of the hearing to hear liability issues regarding the College before hearing those made against Ontario. The applicant submitted that the College is attempting to re-litigate issues that the Tribunal has already considered fully and decided against the College and that nothing has occurred that would justify revisiting these issues.

10The applicant submitted that it has properly pleaded a prima facie claim of discrimination arising from the College’s Declaration Form. The applicant submitted that allegations that the Declaration Form and the requirement to declare a physical or mental condition or disorder are discriminatory were appropriately pleaded in the Application and are appropriately before the Tribunal. In particular, the applicant submitted that the Declaration Form was the first step to discrimination experienced by the applicant because of disability. The applicant also submitted that she articulated this legal position in her submissions in response to the College’s Request for Summary Hearing and in her response to the College’s request to bifurcate the hearing. The applicant submitted that, in any event, while the Tribunal’s Rules of Procedure require applicants to plead all material facts on which they intend to rely, there is no requirement to disclose all legal theories and arguments that may support a claim of discrimination. The applicant submitted that the College will suffer no prejudice if the applicant is permitted to pursue the argument that the Declaration Form and requirement to declare physical or mental conditions are discriminatory because the College has had notice of the applicant’s intention to do so since the Application and from the applicant’s responses the College’s Request for Summary Hearing and its request for bifurcation. The applicant also submitted that the applicant does not seek to change the material facts on which it will rely.

11In any event, the applicant advised that she will file a Request for an Order During Proceedings, presumably to amend the Application, to clarify her right to advance any legal position regarding the nature of the discrimination arising from the alleged material facts.

12The applicant submitted that the Tribunal should not strike the witness statements of her witnesses because the proposed evidence is relevant to the issue of liability. The applicant submitted that Ms. Ryan, Ms. Robinson, Ms. MacDonald and Mr. Almeida will testify about the adverse impact of the discrimination on the applicant. Specifically, the applicant submitted that these witnesses will provide evidence regarding of the impact on the applicant while attempting to meet the College’s requirements; the impact experienced by the applicant as a result of losing her employment; the likelihood the applicant would have obtained full-time employment had her license not been revoked, including evidence about the New Graduate Guarantee program and the applicable ONA collective agreement; and the adverse psychological and financial impacts experienced by the applicant.

13The applicant adopted the intervenor’s submissions regarding the proposed evidence of Ms. Ciavaglia and the balance of Ms. MacDonald’s evidence.

The Intervenor

14The intervenor also filed a Response to a Request for an Order on April 17, 2014. The intervenor also submitted that the College’s requests to bring another motion to dismiss the Application and to again request bifurcation of the hearing amount to an abuse of process. In my view, the intervenor’s submissions regarding abuse of process do not add anything to the applicant’s and I will not describe them in this Interim Decision.

15Regarding witnesses, the intervenor submitted that the evidence of Ms. MacDonald, Ms. Ciavaglia and Ms. Ruddock will be directly relevant to the Application, which addresses the effect of the College’s registration process on her personally and addresses the adverse impact on of this process on nurses with disabilities. The intervenor submitted that the evidence addressing the intervenor’s previous experiences with the registration process that these witnesses can provide will assist the Tribunal in concluding whether there was an adverse impact in this case. The intervenor submitted that the Application raises issues of systemic discrimination and therefore the appropriate evidence should be adduced to outline the systemic scope of the Application. The intervenor submitted that the Tribunal should be wary of cutting of the calling of witnesses at this preliminary stage and that evidentiary issues should be dealt with at the hearing.

Analysis and Decision

Summary Hearing and Bifurcation Denied

16The College’s request for the Tribunal to hear a motion to dismiss the Application at the outset of the hearing amounts to a second request for a summary hearing. The request is denied. Pursuant to Rule 19A.5, of the Tribunal’s Rules the Tribunal need not give reasons for a decision not to hold a summary hearing.

17The College’s alternative request to use the first three days of hearing to determine whether the applicant has made out a case of discrimination against the College arising from the factual allegations contained in the pleadings is, in my view, a second request to divide the litigation of liability issues as against the College and Ontario, which I denied in a previous Interim Decision. See Ryan v. Colleges of Nurses of Ontario, 2014 HRTO 139. The College has not provided any basis for revisiting that decision and this request is also denied.

18In my view, the most fair, just and expeditious procedure is to have the applicant present her evidence regarding the liability of both respondents, followed by the respondents’ evidence. It remains open to the respondents to request that the Tribunal decide the after hearing some but not all proposed evidence on the basis that the Application has no reasonable prospect of success pursuant to the Tribunal’s decision in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777.

Declaration Form

19There is no doubt, and it appears no dispute, that the applicant completed a Declaration Form when applying for General Registration and declared that she had been diagnosed with seizures and that these facts are set out in the Application. I remain of the view, however, that the applicant did not state in the Application that the Declaration Form or the requirement to disclose physical or mental conditions is itself discriminatory. See Ryan v. Colleges of Nurses of Ontario, 2014 HRTO 476. The applicant has, however, now filed a Request for an Order During Proceedings to permit her to rely on this argument and I will reserve a decision on this issue pending the outcome of that request.

Evidence

20In Ryan v. Colleges of Nurses of Ontario, 2014 HRTO 476, the Tribunal bifurcated the hearing to first deal with the issue of liability and then, if necessary, remedy. Accordingly, only evidence relevant to the issue of liability shall be adduced during the three hearing days currently scheduled. The applicant submitted that the proposed evidence of Ms. Ryan, Ms. Robinson, Ms. MacDonald and Mr. Almeida will address the “adverse impact” of the alleged discrimination on the applicant. In my view, the adverse effect of the respondents’ alleged discrimination appears to be the revocation of her Temporary Registration, the delay in receiving General Registration and the loss of her employment. The expected evidence of these witnesses, as set out in the applicant’s witness statements, above, will address the impact on the applicant while attempting to meet the College’s requirements; the impact experienced by the applicant as a result of losing her employment; the likelihood the applicant, as nurse in the New Graduate Guarantee program, would have obtained full-time employment had her license not been revoked; the adverse psychological and financial impacts experienced by the applicant; and the difficulty the applicant experienced in finding new employment as a nurse. This evidence describes the further consequences of the alleged adverse effects on the applicant and is relevant to remedy, not liability. Consequently, I will not hear this evidence during the liability stage of the hearing.

21The applicant’s witness statement indicate that the expected evidence of Ms. MacDonald, an employee of the intervenor, will address the intervenor’s New Graduate Guarantee program and its work with the Ministry of Health and Long-Term Care and the Ontario Hospital Association regarding the New Graduate Guarantee program. The expected evidence of Ms. Ciavaglia and/or Ms. Ruddock, who are also employed by the intervenor, will address the operation of the intervenor’s Legal Expense and Assistance Plan (“LEAP”) and why the intervenor extended assistance to the applicant under this plan. These witnesses are also expected to testify regarding the experience of the LEAP team in engaging with the intervenor’s members and the College regarding the registration and other process and with respect to the impact of these processes on members with disabilities.

22This Application is an individual claim of discrimination under section 34(1), in which the applicant alleges her Code rights were violated by Regulation 275/94 and the College’s processes, both of which the applicant allege are discriminatory. This is not a claim of systemic discrimination of the type that may be brought by the Human Rights Commission under section 35 of the Code. Accordingly, to be relevant, the evidence adduced must relate to the applicant’s claim and contextual evidence may be relevant to an individual claim of discrimination. See Khatkur v. Peel District School Board, 2012 HRTO 472. However, it is not at all clear to me how the proposed evidence of Ms. MacDonald, Ms. Ciavaglia and/or Ms. Ruddock, described above, will assist me in determining whether the respondent’s violated the applicant’s Code rights. In particular, evidence regarding the impact of the College’s processes on other nurses with disabilities seems unnecessary, since the applicant indicates that she will provide evidence regarding the impact the registration had on her. In these circumstances, I am not inclined to hear this evidence, but the applicant may make submissions regarding why this evidence is relevant or necessary following the completion of her other evidence.

23To be clear Ms. MacDonald’s expected testimony regarding the operation of the intervenor’s collective agreements, in particular the agreement between the intervenor and the applicant’s employer, when a nurse’s certificate of registration is suspended or revoked is in my view relevant and shall be heard.

The Intervenor’s Participation

24The Tribunal granted intervenor status to the Ontario Nurses Association in a previous Interim Decision in this matter, Ryan v. Colleges of Nurses of Ontario, 2014 HRTO 476. The Tribunal, however, limited the scope of the intervenor’s participation to making submissions following the completion of evidence because it was not satisfied that the intervenor could provide assistance that was not otherwise available and because it appeared that the intervenor’s participation would be repetitious. Consequently, the College objected to the intervenor filing submissions in response to the College’s request that is the subject of this Interim Decision. The intervenor has indicated that it overlooked, in error, the limited scope of its participation and asked for clarification. Accordingly, the Tribunal confirms that the scope of the intervenor’s participation is as ordered in Ryan v. Colleges of Nurses of Ontario, 2014 HRTO 476 at paragraph 19, and that participation beyond this shall require the leave of the Tribunal.