McLean v. Riverside Health Care Facilities Inc., 2014 HRTO 971

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lori McLean

Applicant

-and-

Riverside Health Care Facilities Inc.

Respondent

-and-

Canadian Union of Public Employees, Local 4807

Intervenor

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: July 3, 2014

Citation: 2014 HRTO 971

Indexed as: McLean v. Riverside Health Care Facilities Inc.

WRITTEN SUBMISSIONS

Lori McLean, Applicant

Self-represented

Riverside Health Care Facilities Inc., Respondent(s)

Christopher Hacio, Counsel

Canadian Union of Public Employees, Local 4807, Intervenor

No one appearing

1The hearing of this Application took place in Thunder Bay on October 28 and 29, 2013.

2The issue before the Tribunal is whether the termination of the applicant’s employment after she admitted stealing narcotic medication (hydromorphone) amounted to discrimination because of disability, in violation of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In her evidence, the applicant identified herself as an alcoholic and a cocaine addict and argued that the theft of the drugs was related to her addictions, alcoholism in particular. The respondent’s position was that it dismissed the applicant for theft of medication and that the evidence did not establish that either the theft or dismissal was related to an addiction.

3The applicant adduced several documents to show the respondent’s perception of the applicant at the time it dismissed her and medical documents expressing opinions regarding her substance abuse problems. All of these documents were created for the purpose of reporting to the College of Nurses of Ontario (“the College”) regarding the applicant’s fitness to practice nursing. These documents are as follows:

1. Report for Facility Operators and Employers, dated July 27, 2010 from the respondent to the College regarding the theft of medication by the applicant;

2. Telephone Interview Summary of a conversation between, the respondent’s Executive Vice President, and the College investigator on August 31, 2010;

3. A letter from Dr. M. to the College investigator, dated December 12, 2010, expressing his opinion regarding the applicant’s condition; and,

4. The reports of Dr. W., an addictions specialist retained by the College, dated June 16, 2011, March 17, 2012 and July 23, 2012 to the College regarding the applicant’s condition and recommendations for treatment and monitoring.

The applicant also adduced reports to the College regarding her progress in rehabilitation and correspondence between her and the College regarding its investigation into her capacity and the referral to the Fitness to Practice Committee (“FTP”).

4Since the completion of the hearing, this writer became aware of section 36(3) of the Regulated Health Professions Act, 1991, 1991, S.O. 1991, c. 18 (the “RHPA”). This section states as follows:

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.

5There was no dispute that the College established a panel of its Inquiries, Complaints and Reports Committee (“ICRC”) to conduct an inquiry into the applicant’s capacity, following the respondent’s report to the College on July 27, 2010. The statutory authority to establish such a panel is found in section 25 of the Health Professions Procedural Code, which is Schedule 2 to the RHPA and is also deemed to be part of the Nursing Act, 1991, S.O. 1991, c. 32. There was also no dispute that the ICRC panel concluded its inquiry on July 27, 2011 and that on August 25, 2011 the ICRC referred the applicant to the Fitness to Practise Committee (“FTPC”) pursuant to section 61 of the Health Professions Procedural Code.

6A hearing before the FTPC was not required because the College and the applicant reached an agreement on August 3, 2012 regarding the measures the applicant was required to take before applying to have her Certificate of Registration (i.e., her license to practise nursing) returned to her. The parties also agreed to a consent order of the FTPC, dated August 17, 2012 finding that the applicant was incapacitated as defined in the Health Professions Procedural Code.

7The Nursing Act is a health profession Act. A hearing before this Tribunal is a civil proceeding.

8Consequently, it appeared that some or all of the evidence described in paragraph 3, above, may not be admissible before the Tribunal, in which case I must take no regard of it in rendering my decision in this matter. Neither party raised this issue during the hearing; therefore, I directed the parties to make written submissions regarding whether some or all of the evidence in question was prepared for a proceeding under the RHPA and/or Nursing Act and therefore is inadmissible pursuant to section 36(3) of the RHPA.

9The Tribunal also invited the College to make submissions on this issue, but the College did not respond.

submissions

10The applicant noted, correctly, that in a Case Assessment Direction dated October 15, 2013 the Tribunal specifically required the applicant to disclose any arguably relevant documents in her possession, including any decision of the College related to the incidents on which this Application is based and any documents or reports related to the College’s investigation into the applicant’s fitness to practice that she had not already disclosed. The applicant submitted that she had filed several documents from the College investigation for use in the hearing prior to the Case Assessment Direction of October 15, 2013 and filed several more as a result of the Tribunal’s direction. On that point, I note that the applicant disclosed the documents described in paragraph 3(1-4), above, prior to the Case Assessment Direction of October 15, 2013.

11The applicant submitted that the Report for Facility Operators and Employers, dated July 27, 2010 from the respondent to the College led the College to commence an investigation regarding the applicant. The applicant submitted that the investigation commenced after the College received the report and is therefore not caught by section 36(3) of the RHPA. Consequently, the applicant submitted that this document should remain in evidence.

12The applicant conceded that the following documents may not be admissible, pursuant to section 36(3) of the RHPA:

a. The Telephone Interview Summary of a conversation between the College investigator and the respondent’s Executive Vice President on August 31, 2010;

b. Dr. W.’s reports to the College, dated March 17, 2012 and July 23, 2012 regarding the applicant’s recovery efforts to date and his recommendations regarding her ongoing recovery efforts; and,

c. Correspondence between the College and the applicant regarding the ICRC investigation and referral to the FTP.

13The applicant submitted that she agreed to release her personal medical information to the College, but submitted that the College does not hold exclusive jurisdiction over her medical information. Accordingly, the applicant submitted that she maintains the right to use the following documents at her discretion, although they were disclosed to the College pursuant to its investigation:

a. The applicant’s letter to the College investigator, dated October 25, 2010, responding to the investigator’s inquiries pursuant to the ICRC investigation;

b. A letter dated December 12, 2010 from Dr. M., the applicant’s physician, to the College investigator, in he which provides his opinion regarding the applicant in response to the investigator’s inquiries;

c. A letter dated January 3, 2012 from Mr. T., an Addiction Counsellor, to the College investigator, regarding the applicant’s progress in rehabilitation and next steps;

d. A letter dated January 30, 2012 from Dr. M. to the College investigator, in which he reports regarding the results of the applicant’s drug testing regimen;

e. The Discharge Summary from the Sister Margaret Smith Centre, indicating a discharge date of December 15, 2011, describing the applicant’s progress in treatment and discharge plans;

f. Progress notes of Dr. PM, dated June 10, 2013 and July 31, 2013 regarding the applicant’s recovery progress; and,

g. A letter dated October 21, 2013 from Dr. M. to the College investigator, in which he reports regarding the results of the applicant’s drug testing regimen.

14The respondent submitted that the applicant tendered several documents that would fall within the category of documents described in section 36(3) of the RHPA. The respondent submitted that the College commenced its investigation of the applicant following the respondent’s report to the College on July 27, 2010. The respondent submitted that it does not appear that the College has completed its investigation, as the applicant’s testimony at the hearing of this Application was that she continued to seek reinstatement to the practise of nursing in Ontario.

15The respondent submitted that section 36(3) of the RHPA is quite clear and that there does not appear to be any circumstances in which the documents described in that section may be used in any form of civil proceeding. The respondent submitted that it was unable to find any case law in which the Tribunal admitted documents coming within the prohibition set out in 36(3) of the RHPA. Similarly, the respondent submitted that there is no case law permitting the parties to waive the blanket protection established by section 36(3) of the RHPA on consent.

16The respondent also submitted that section 36(3) is extremely broad and includes any report, document, thing, statement, order or decision made as part of proceeding under the RHPA. Consequently, the respondent submitted that any document whatsoever that is part of a proceeding under the RHPA is not admissible in a hearing before the Tribunal. The respondent submitted that this prohibition extends to the documents arising out of the College’s investigation of the applicant.

Analysis and Decision

17In F. (M.) v. Dr. Sutherland, 2000 CanLII 5761 (“Sutherland”), the Court of Appeal for Ontario considered the application of section 36(3) of the RHPA and concluded that it created an “absolute bar” to the admissibility of documents prepared for a proceeding referred to in section 36(3) (at paragraph 44). In doing so, the Court described the public policy goal of section 36(3), as follows, at paragraph 29:

…The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action…

18In Conroy v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324, the Superior Court of Justice applied Sutherland, above, and other cases following it, and found that “…it is clear from the case law that s. 36(3) of the RHPA creates a blanket prohibition against the admissibility of all evidence collected during the course of the College’s investigation and this prohibition is an absolute one” (at paragraph 55). In light of this jurisprudence, the Tribunal has found that documents caught by section 36(3) of the RHPA are inadmissible in a hearing before the Tribunal. See for example Gan v. College of Physicians and Surgeons, 2013 HRTO 1888, Pakarian v. University of Toronto, 2012 HRTO 156 and K.M. v. Kodama, 2014 HRTO 526.

19In my view, the case law is clear that any document prepared for a proceeding under a health profession Act, such as the Nursing Act, is inadmissible in a hearing before this Tribunal. Matters before the ICRC and the FTPC are clearly proceedings under a health profession Act, since both the ICRC and FTPC are established pursuant to the Health Professions Procedural Code, which is deemed to form part of the Nursing Act. Accordingly, the issue before me is whether the documents in question were prepared for the ICRC investigation of the applicant or for the FTPC proceeding.

20In my view, all of the documents filed with the College between July 27, 2010 and August 25, 2011 were prepared for the ICRC investigation and are inadmissible. The applicant argued that the College established the ICRC panel after the respondent’s report to the College on July 27, 2010 and therefore this report is not inadmissible under section 36(3). The respondent’s report to the College, however, led directly to the ICRC investigation, and given the public policy rationale of the statutory prohibition, it would be in my view be an odd result if the document initiating a proceeding under a health profession Act is not caught by the prohibition. In Conroy, above, the plaintiff was a doctor who brought an action in Court against the College of Surgeons and Physician of Ontario (“CSPO”) after the CSPO investigated a complaint indicating that the plaintiff was incapacitated and took certain actions that resulted in the Registrar of the CSPO to refuse to reissue the plaintiff’s Certificate of Registration, i.e., his license to practise. The CSPO brought a motion to strike out the plaintiff’s Statement of Claim. The Court granted the motion regarding most of the claim, finding that the substance of the plaintiff’s claims arose from proceedings under the RHPA and the evidence gathered in those proceedings was inadmissible. The Court included the complaints leading to the CSPO’s inquiries in the body of evidence that was inadmissible. In this case, the respondent filed a report as the RHPA required it to report when a health professional is incapacitated. In my view, the Court’s reasoning in Conroy, above, applies as the report initiates a review by the College and serves the same purpose as a complaint.

21The telephone conversation between the respondent’s Executive Vice President and the College investigator on August 31, 2010 was clearly part of the College’s investigation, which the applicant concedes. Dr. M’s letter to the College’s investigator of December 12, 2010 was drafted in respond to inquiries from the investigator and was prepared for the ICRC investigation. The College retained Dr. W. to assess the applicant as part of ICRC investigation into her capacity; therefore Dr. W’s report to the College of June 16, 2011 was clearly prepared for that proceeding. The applicant’s letter to the College investigator, dated October 25, 2010 was drafted to respond to the College’s inquiries pursuant to the ICRC’s investigation. All of these documents are inadmissible pursuant to section 36(3).

22The ICRC investigation concluded on July 27, 2011 and the ICRC panel referred the matter to the FTPC on August 25, 2011. The FTCP process concluded with the consent order of August 17, 2012. In my view, the consent order was clearly a decision made in a proceeding under a health profession Act and the agreement between the applicant and College was clearly a document prepared for a proceeding under a health Act, i.e., the FTPC hearing. However, the medical documents submitted to the College in this time period all relate to the applicant’s rehabilitation efforts with a view to establishing her capacity to practise nursing. These documents include: Dr. W.’s reports to the College, dated March 17, 2012 and July 23, 2012; the letter dated January 3, 2012 from Mr. T. to the College; the letter dated January 30, 2012 from Dr. M. to the College and the Discharge Summary from the Sister Margaret Smith Centre. It appears that these documents were prepared to assess the applicant’s capacity to practise nursing. The materials before me, however, do not indicate whether the applicant submitted these documents to the College as part of the FTPC process or for another purpose, e.g., to monitor her rehabilitation progress. In these circumstances I am unable to find that they were prepared for the FTPC hearing. Consequently, I find that these documents are not rendered inadmissible pursuant to section 36(3) of the RHPA. Nonetheless, the parties will be provided with an opportunity to make submissions on the relevance of these documents regarding the issues before me, i.e., whether the applicant’s behaviour was caused by a disability and whether the respondent dismissed her because of her disability or perceived disability.

23As noted above, the FTPC proceeding ended on August 17, 2012. There is no indication that the College commenced any other proceeding after that date. The documents disclosed to the College after August 17, 2012 all relate to her ongoing rehabilitation efforts with a view to establishing that the applicant was meeting the conditions for applying for the return of her Certificate of Registration. These documents include: the progress notes of Dr. PM, dated June 10, 2013 and July 31, 2013 regarding the applicant’s recovery progress; and, the letter dated October 21, 2013 from Dr. M. to the College. In my view, these documents were not prepared for a proceeding under a health profession Act and are not rendered inadmissible pursuant to section 36(3) of the RHPA. Again, the parties will be provided with an opportunity to make submissions on the relevance of these documents with respect to the issue identified in paragraph 22 above.

24As noted above, the applicant was correct when she noted that this writer directed her to produce documents arising out of the College proceedings inquiring into her fitness to practise nursing. Of course, I was unaware of sections 36(3) of the RHPA at the time I gave that direction, as, apparently, were the parties. This is obviously regrettable, but the CAD of October 15, 2013 also alerted the applicant to another significant issue with the evidence she intended to rely upon based on her pre-hearing disclosure obligations under Rule 17 of the Tribunal’s Rules of Procedure as follows, at paragraph 4:

The applicant has indicated that she intends to rely upon several reports from medical professionals relating to the College’s investigation and her treatment. She has not indicated that she intends to present the medical professionals who authored these documents as witnesses. If the authors of the documents do not testify, the respondent will not be able to cross-examine them and the documents will therefore be hearsay. Pursuant to the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the Tribunal may admit hearsay evidence, but may not attach weight to it.

Accordingly, the applicant was provided with notice by the Tribunal that the documentary evidence that she intended to rely upon arising out the College’s processes could be of little value to her in any event if she did not present the authors of the documents at the hearing, which she did not.

Direction

25In my view, it is appropriate to afford the parties an opportunity to make submissions in light of my evidentiary rulings, above. The Tribunal directs as follows:

1. Within 14 days of the date of this Interim Decision, the applicant party shall file with the Tribunal and deliver to the respondent written submissions regarding the impact of the rulings regarding evidence set out in this Interim Decision, above, on the outcome of this Application, i.e., how the respective parties believe the Tribunal should decide this Application given the Tribunal’s ruling about the evidence in this matter;

2. Within 14 days of the day on which the applicant delivers and files her written submissions, the respondent shall file with the Tribunal and deliver to the applicant written submissions regarding the impact of the rulings regarding evidence set out in this Interim Decision, above, on the outcome of this Application, i.e., how the respective parties believe the Tribunal should decide this Application given the Tribunal’s ruling about the evidence in this matter; and,

3. Within 14 days of the day on which the respondent delivers and files its written submissions, the applicant may file with the Tribunal and deliver to the applicant written submissions replying to respondent’s submissions.