Dindial v. College of Nurses of Ontario, 2016 HRTO 1170

Human Rights Tribunal of Ontario

B E T W E E N:

Barbara Dindial Applicant

-and-

College of Nurses of Ontario Respondent

DECISION

Adjudicator: Alison Renton Date: September 6, 2016 Citation: 2016 HRTO 1170 Indexed as: Dindial v. College of Nurses of Ontario

APPEARANCES

Barbara Dindial, Applicant Self-represented

College of Nurses of Ontario, Respondent Raj Anand and Priya Morley, Counsel

1This Application was filed on July 15, 2014 and alleges discrimination with respect to membership in a vocational association and employment because of race, colour, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is a registered nurse. The respondent is the regulatory body for the nursing profession whose mandate arises from the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”), and the Nursing Act, 1991, S.O. 1991, c. 32 (“Nursing Act”).

2The Application was deferred pending conclusion of a proceeding before the respondent. See 2014 HRTO 1369. It was reactivated in September 2015 when the proceeding concluded and the respondent was directed to file a Response. The respondent filed a partial Response, in which it raised a number of preliminary issues, including a statutory prohibition on the admissibility of information pertaining to allegations in the Application.

3After the Response was filed, the Tribunal issued a Case Assessment Direction dated October 28, 2015 stating that a preliminary hearing would be held to determine whether the Application should be dismissed, in whole or in part, on the basis that: some of the allegations were untimely, another proceeding had appropriately dealt with the substance of the Application and whether there is no reasonable prospect that the Application or part of it would succeed. A subsequent Case Assessment Direction was issued stating that the hearing date would focus on the third issue, whether there was no reasonable prospect that the Application would succeed (“the summary hearing”), and if the Application did proceed, the other issues would be addressed at a later time.

4The summary hearing was held on February 22, 2016 and both parties participated. The respondent made its submissions first and the applicant responded to those submissions.

5For the reasons set out, I have determined that the Application has no reasonable prospect of success and it is dismissed.

Background

6In light of my finding, and the applicability of section 36(3) of the RHPA set out below, I am mindful to not include many details of the applicant’s interactions with the respondent.

7In July 2012, the applicant self-reported to the respondent several criminal convictions registered against her and provided background information leading to the charges and convictions. She had not reported these convictions to her employer and had not sought assistance from a health care professional, although she had from other sources.

8The respondent’s Inquiries, Complaints and Reports Committee (“the ICRC”) advised the applicant that it would be conducting an inquiry, requested that she provide further information, and required her to attend an independent medical examination (“IME”). She provided further information and attended the IME. The IME physician made a diagnosis and a number of recommendations. The applicant disagreed with both and alleged the IME physician ignored information she provided to him. She was required to report her convictions to her employer. The ICRC suspended her nursing licence on an interim basis and referred her issues to the respondent’s Fitness to Practise Committee (“FTPC”) for a hearing. With her licence suspended, the applicant was not permitted to work in her field. In addition to losing wages, she submits, she lost training opportunities.

9After some delay, the FTPC hearing was ultimately held and a decision issued.

10The applicant alleges that she was harassed and discriminated against by the respondent during the ICRC and FTPC proceedings. It ignored the background information relevant to her convictions and the steps she took to address those convictions. It suspended her licence and prevented her from working as a way to give in to its requests, which felt like blackmail. She was punished by the courts and then again by the respondent.

11The respondent submits that the applicant’s allegations revolve entirely upon the respondent’s actions in carrying out its duties under the RHPA. It submits that the applicant’s allegations are based exclusively on evidence that is inadmissible before the Tribunal pursuant to section 36(3) of the RHPA, and accordingly has no reasonable prospect of success. It submits that because of the statutory inadmissibility of this evidence, it cannot file a complete Response. It filed a Request for Summary Hearing.

The Respondent's Submissions

12The respondent submits that the applicant’s allegations are founded on evidence and actions that are inadmissible before the Tribunal by virtue of 36(3) of the RHPA. This creates an absolute bar and a blanket prohibition against the admission of evidence related to a proceeding or hearing whether it is the ICRC or the FTPC and decisions from those committees. The Application is based solely on the applicant’s allegations and evidence which were prepared for the ICRC and FTPC. This includes correspondence, reports, evidence, and decisions, all of which are inadmissible before the Tribunal pursuant to section 36(3) of the RHPA. Without the facts, documents, and decisions related to the substance of the Application, there is no foundation upon which a discrimination case can be upheld. The respondent submits that the Application has no reasonable prospect of success and should be dismissed.

13The respondent presented a number of cases and submitted that the courts, and the Tribunal, have consistently concluded that section 36(3) of the RHPA applies to both applicants and respondents in various legal proceedings, whether it is before the courts or the Tribunal.

14Alternatively, the respondent submits that the Tribunal does not have any jurisdiction over the Application because of the principles of adjudicative immunity and statutory adjudicative immunity. Adjudicative immunity, the respondent submits, exempts quasi-judicial decision-makers, such as the ICRC and FTPC, from the application of the Code due to their functional comparability to judges. Statutory adjudicative immunity, the respondent submits, is based upon section 38 of the RHPA which grants the respondent, its committees, employees and committee members from claims based on its good faith actions. Since the applicant has not alleged that the ICRC or the FTPC have acted in bad faith, the respondent is immune from any proceedings arising out of the committees' actions and decisions.

15In the further alternative, the respondent submits that the applicant has not asserted any facts which would constitute harassment or discrimination under the Code, has not asserted any differential treatment, and has not established that the alleged adverse impact was related to any of the Code’s prohibited grounds. The applicant’s licence was suspended as a result of the ICRC applying the applicable legislative criterion for a proper statutory purpose in accordance with the respondent’s public protection mandate. The applicant has not been able to establish that any delay attributed to the FTPC proceeding is attributable to any Code ground.

The Applicant's Submissions

16The applicant re-iterated, during her submissions, some of the allegations upon which her Application is based and submitted that the respondent’s actions are discriminatory on the basis of race, colour, ethnic origin and disability. She disputes the IME assessment, claims that it ignored relevant information, referenced irrelevant information, and was inaccurate. She took issue with the time of the FTPC hearing.

17The Tribunal asked the applicant if she wanted to respond to the respondent’s submissions about the applicability of section 36(3) of the RHPA. The applicant submits that the respondent should not be able to hide behind the provisions of the RHPA and infringe her Code rights. She submits that the principle of primacy applies, such that the Code applies over the RHPA and that the Tribunal ought to hear evidence and arguments about the merits of her Application.

Analysis

18Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed.

19The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained in Dabic v. Windsor Police Services, 2010 HRTO 1994. At paras. 8 to 10, the Tribunal stated:

In some cases, the issue at the summary hearing will be whether assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

20Section 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 relation to an order under setion11.1 or 11.2 of the Ontario Drug Benefit Act.

21Ontario courts have held that section 36(3) of the RHPA is a blanket prohibition against the admissibility of all evidence collected during the course of a health profession’s college’s investigation and that this prohibition is an absolute one. See Conroy v. College of Physicians & Surgeons (Ontario), 2011 ONSC 324 at para. 55, aff’d 2011 ONCA 517, leave to appeal to S.C.C. refused, 2012 CanLII 698 (where regulatory college published referral to FTPC in public register and on website was inadmissible in civil proceeding). See also M.F. v. Dr. Sutherland, 2000 CanLII 5761 (ON CA) at paras. 29, 30 and 44 (where a complaint to the regulatory college and subsequent recantation were inadmissible in a civil proceeding); and Frank v. Legate, 2015 ONCA 631 at para. 61 (where complaints to the regulatory college were inadmissible in a civil action for malicious prosecution).

22The Tribunal has applied section 36(3) of the RHPA to prevent both applicants and respondents from relying on “reports, documents or things prepared for or statements given at such a proceeding” under the RHPA, as well as the initiation and processing of matters resulting in such decisions and the decisions themselves. This has effectively prevented issues arising from those proceedings and those decisions from being adjudicated before the Tribunal. See, for example, K.M. v. Kodama, 2014 HRTO 526 at para. 28; Borba v. North York General Hospital, 2015 HRTO 1709; Ren v. College of Massage Therapists of Ontario, 2016 HRTO 147 at para. 21; Dolny v. College of Massage Therapists of Ontario, 2015 HRTO 1724; Moshi v. Ontario (Ministry of Community Safety and Correctional Services), 2014 HRTO 1044 at para. 14; Gan v. College of Physicians and Surgeons, 2013 HRTO 1888 at para. 47; and McLean v. Riverside Health Care Facilities Inc., 2014 HRTO 971.

23In Borba, above, at para. 8, a document prepared for a proceeding before a regulatory college and subsequent ICRC decision were found to be inadmissible in the Tribunal’s proceeding pursuant to section 36(3) of the RHPA.

24In Gan, above, at para. 47, the Tribunal determined that because of section 36(3) of the RHPA, an ICRC decision was found to be inadmissible in the Tribunal’s proceedings.

25In McLean, above, at para. 19, the Tribunal found that documents prepared for the ICRC investigation and a consent order with the FTPC were inadmissible in the Tribunal’s proceeding in light of section 36(3) of the RHPA.

26In the Application before me, in light of section 36(3) of the RHPA, the information and documents pertaining to the ICRC or FTPC proceedings, including the IME and the applicant informing her employer, and the decisions issued by the ICRC and FRPC are inadmissible before the Tribunal.

27There is essentially nothing left of the Application with the information and documentation, described in para. 26 above, being inadmissible, apart from the applicant self-reporting her convictions to the respondent. I agree with the respondent that the Application is founded almost exclusively on interactions and information pertaining to the ICRC and the FTPC. Accordingly, I find that there is no reasonable prospect that the Application will succeed and it is dismissed.

28In light of my finding that the prohibition under section 36(3) of the RHPA applies, I do not need to consider the respondent’s alternate submissions. I also do not consider the remaining two issues set out in the CAD, delay and whether another proceeding has appropriately dealt with the substance of the Application.

29For the reasons set out above, there is no reasonable prospect that the Application will succeed. Accordingly, the Application is dismissed in its entirety.