Fitzsimmons v. Hotel-Dieu Grace Hospital, 2014 HRTO 718

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lynn-Sharon Fitzsimmons

Applicant

-and-

Hotel-Dieu Grace Hospital and Jennifer Nugent

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: May 20, 2014

Citation: 2014 HRTO 718

Indexed as: Fitzsimmons v. Hotel-Dieu Grace Hospital

WRITTEN SUBMISSIONS

Lynn-Sharon Fitzsimmons, Applicant

Zahra Binbrek, Counsel

Hotel Dieu Grace Hospital and Jennifer Nugent, Respondents

Kate Dearden, Counsel

INTRODUCTION

1This Interim Decision deals with the applicant's request to add two personal respondents as respondents to the Application and to amend the Application.

2The Application relates to the applicant's treatment in the hospital following knee surgery in May 2013. The applicant is blind. She alleges that a physiotherapist discriminated against her because of disability in the way that the physiotherapist interacted with her.

3The applicant alleges that she attempted to reach the patient advocate employed by the hospital. During her stay in hospital, she left two messages for the patient advocate which were not returned. In August 2013, about two months after her stay in hospital and after she had filed the Application, the applicant wrote to the patient advocate to outline her concerns. She alleges that she did not initially receive a response from the patient advocate. She did have a meeting in September 2013, after she had contacted senior officials at the hospital.

4At the time the applicant filed the Application, she was not represented. She is now represented by the Human Rights Legal Support Centre. On behalf of the applicant, the Centre requests that the physiotherapist and the patient advocate be added as personal respondents. The Centre notes that in the original Application, the applicant did indicate that she wished to name these people as respondents although she did not know their full names and did not fully complete that part of the Application.

5In addition, the applicant wishes to amend the Application to include allegations relating to her communications with the hospital and the patient advocate after she was discharged from the hospital.

6The corporate respondent opposes the request to add the personal respondents and also opposes the request to amend the Application. The corporate respondent advises that the physiotherapist is no longer employed by the hospital but the patient advocate is still employed.

ANALYSIS AND CONCLUSIONS ABOUT THE REQUEST TO ADD RESPONDENTS

7The Tribunal has typically considered the following factors when deciding whether to add or remove a personal respondent:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice or unfairness be caused to any party as a result of removing or adding the personal respondent?

8Persaud v. Toronto District School Board, 2008 HRTO 31; Smyth v. Toronto Police Services Board, 2009 HRTO 1513.

9In this case, the applicant's allegations about her treatment in hospital relate to her interactions with the physiotherapist and the failure of the patient advocate to return her messages. At the time of the alleged discrimination, the physiotherapist and the patient advocate were employees of the hospital. Pursuant to section 46.3, any “act or thing done or omitted to be done in the course of his or her employment” by an employee of an employer is deemed to be an act or thing done or omitted to be done by the employer.

10In this case, the allegations about both of the proposed personal respondents relate to the manner in which they performed their duties. The allegations about the physiotherapist concern the manner in which she interacted with the applicant while providing physiotherapy to the applicant. There is nothing to suggest that there could be a finding that the physiotherapist’s conduct was such that the conduct would have taken her out of the course of her employment.

11Similarly, there is nothing to suggest that the alleged failure by the patient advocate to return telephone calls or emails is such that the failure, if true, took her out of the course of her employment.

12As a result, the hospital would be liable for the actions of the physiotherapist or the inaction of the patient advocate, if discrimination were to be found. The corporate respondent has stated that it would accept any liability if liability is found.

13One of the remedies sought by the applicant is human rights training “for all staff”.

14The physiotherapist is not part of the staff of the corporate respondent. If an individual is still an employee of a corporate respondent, and if the Tribunal determines that training is an appropriate remedy, the corporate respondent can be directed to ensure that the employee receives training. In this case, the corporate respondent could not be directed to provide training for the physiotherapist as she is no longer under the corporate respondent’s control.

15The Tribunal can only order a remedy in respect of a party to the Application. If an individual is still an employee of the corporate respondent, the corporate respondent can be directed to ensure that the employee receives training. In this case, the corporate respondent could not be directed to provide training for the physiotherapist as she is no longer under the corporate respondent’s control.

16In this case, it appears to me that if the applicant’s allegations about the conduct of the physiotherapist were found to be true, an order directing the physiotherapist to have training would be a remedy that the Tribunal might consider.

17This factor suggests to me that it may be appropriate to add the physiotherapist as a personal respondent to the Application.

18The corporate respondent is directed to provide contact information for the physiotherapist to the Tribunal and the applicant’s counsel. The Tribunal will then deliver the case documents, including the applicant's request to add a respondent, to the physiotherapist. The physiotherapist may then make submissions on the request that she be added. She may wish to consult with the corporate respondent.

19The patient advocate is still an employee of the corporate respondent. Even if she was not, the allegation against her is that she did not return calls or messages. On the basis of the allegations about the patient advocate, it is not clear that those allegations, if true would cause the Tribunal to make any order about the patient advocate personally.

REQUEST TO AMEND THE APPLICATION

20The Request filed by the Human Rights Legal Support Centre on the applicant’s behalf also requests that the Application be amended to include additional allegations. These include allegations about events during the applicant’s stay in the hospital, further details about her interactions with the physiotherapist, further details about the messages she left with the patient advocate, and allegations about events in August and September 2013, after the applicant went home and after she filed the Application.

21The applicant’s request to amend the Application to include these additional allegations is granted. I agree with the applicant that it would make no sense to require the applicant to file a new Application with respect to these additional allegations. The allegations are mostly additional information about the allegations. The events in August and September 2013 clearly flow from the earlier alleged events and responding to them will not cause any significant prejudice to the respondents.

ORDER

22The applicant's request to add the patient advocate as a respondent is denied.

23The applicant’s request to amend the Application to add further particulars and allegations is granted.

24The respondent is directed to provide the Tribunal and the applicant with contact information for Ms. Nugent. The Tribunal will deliver a copy of the case materials to her. She may then make submissions on the applicant’s request that she be added as a respondent to the Application. Those submissions will be due within 35 days of the date the materials are sent by the Tribunal.