Campo v. Hancock, 2015 HRTO 1066

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicholas Campo as represented by his litigation guardian Felicia Campo Applicant

-and-

Dr. David Hancock Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: August 11, 2015 Citation: 2015 HRTO 1066 Indexed as: Campo v. Hancock

WRITTEN SUBMISSIONS

Nicholas Campo as represented by his litigation guardian Felicia Campo, Applicant Self-represented

Dr. David John Hancock, Respondent Nada Nicola-Howorth and Jennifer Hunter, Counsel

Introduction

1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The purpose of this Interim Decision is to decide whether it is appropriate for the Tribunal to defer consideration of this Application. The respondent has made a Request for Order During Proceedings (the "Request") to defer this Application on the basis that there is a concurrent complaint filed with the College of Physicians and Surgeons of Ontario ("CPSO") based on the same facts as those alleged in this Application. The applicant has taken no position on this Request.

Analysis and Decision

3Section 45 of the Code provides that the Tribunal may defer an application in accordance with the Tribunal's Rules of Procedure. Rule 14.1 of the Tribunal's Rules provides that the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

4In Baghdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

Subject Matter of Other Proceeding, Nature of Other Proceeding and Type of Remedies Available

5The Regulated Health Professions Act ("RHPA") sets out the CPSO complaints process. Complaints to the CPSO are determined by the Inquiries, Complaints and Reports Committee ("ICRC"). Although in this instance the subject matter of the CPSO complaint and the ICRC decision are similar to the subject matter of the Application, the nature of the proceeding is quite different. The ICRC investigates complaints and then renders a decision based on its investigation. The nature of the proceeding is therefore quite different from a proceeding of the Tribunal which is not involved in the gathering of evidence and relies on the parties before it to present the evidence.

6In addition, the purpose of the ICRC proceeding is to consider the physician's care and conduct. The ICRC will determine if the care and conduct warrants further steps such as discipline, a referral to another committee to determine the physician's capacity to practice or a decision that the physician take an education program. The ICRC does not have the power to order any personal remedies for the applicant. Therefore, the types of remedies available at the ICRC are very different from those available at the Tribunal.

Possibility of Inconsistent Finding of Fact

7As indicated above, the ICRC investigates complaints and issues a decision based on this investigation. Although, it is therefore possible that the finding of facts made by the ICRC could differ from findings fact that the Tribunal might make, for reasons set out below, I have found that the issue of the possibility of inconsistent findings is not applicable when considering a request to defer when the concurrent proceeding is at the ICRC.

8Although the possibility for inconsistent findings is present in these situations where the ICRC and the Tribunal will make findings of fact, s.36(3) of the RHPA prevents the parties from disclosing the ICRC's findings in respect of the applicant's CPSO complaint to the Tribunal. Section 36(3) of the RHPA 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. (emphasis added)

9As the Tribunal found in K.M. v. Kodama, 2014 HRTO 526 ("K.M.") at paras 18 and 19:

(...) a decision rendered by the ICRC in respect of a complaint about a physician is a decision made in a proceeding under the RHPA and/or a health profession Act and is therefore subject to s.36(3) of the RHPA.

(...) an Application under the Code is a 'civil proceeding' other than a proceeding under the RHPA, a health profession Act, the Drug and Pharmacies Regulation Act, or the Ontario Drug Benefit Act, within the meaning of s.36(3) of the RHPA.

10In K.M. the Tribunal reviewed jurisprudence in which the courts have considered the application of s. 36(3) of the RHPA including F. (M.) v. Dr. Sutherland, 2000 CanLII 5761(ON CA)("Sutherland"). After reviewing Sutherland, the Tribunal concluded at paras 24-25:,

According the words in s.36(3) of the RHPA their ordinary meaning, the Court of Appeal found that s.36(3) created an "absolute bar" to the admissibility of documents prepared for a proceeding referred to in s.36(3) (Sutherland, above, at para. 44). The court was unwilling to read a "bad faith" exception into s.36(3) in the absence of any wording in the section limiting the general inadmissibility of documents prepared for a College proceeding (Sutherland, above, at para. 27-29).

In finding that the privilege created by s.36(3) was "absolute", the court was mindful of the public policy rationale behind s.36(3). Specifically, the court found that the legislature's purpose in enacting s.36(3) was to encourage the making of public complaints against registered health professionals by removing the risk that complainants' ability to pursue their civil rights could be prejudiced by the making of a complaint.

... 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... (Sutherland, above, at para. 29)

11The Tribunal concluded at para 32 of KM:

(...) there is no doubt that I am bound by the Ontario court decisions, discussed above, which have held that the statutory privilege in s.36(3) is absolute and that there are no exceptions to the general prohibition on admitting documents from a CPSO proceeding in a civil proceeding.

12I am aware that there are a number of Tribunal decisions in which applications were deferred pending the conclusion of a CPSO complaint such as Aurelia v. Grand River Hospital, 2013 HRTO 1909; Mandich v. Clinicare Health Services Wonderland Ltd., 2012 HRTO 1407; and McPhee v. Collins, 2010 HRTO 2063. It does not appear that the issue of statutory privilege under s. 36(3) of the RHPA was considered in those decisions. These decisions were all issued prior to the K.M. decision.

13In sum, I find that s. 36(3) of the RHPA prevents the disclosure of any findings made by the ICRC to the Tribunal in this Application's process. Since those findings would not be known, the concern that the ICRC and the Tribunal could make inconsistent findings does not apply and cannot be a reason to defer this Application.

14Although, the CPSO process and the Tribunal process will continue concurrently, both parties have agreed to mediation and this will be the next step in the Tribunal process.

15In the circumstance, I find that the respondent's Request to Defer must be denied.