HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rachel Weasner
Applicant
-and-
Institute of Complementary and Alternative Therapies Inc. and Shirlee Rankin
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Weasner v. Institute of Complementary and Alternative Therapies Inc.
WRITTEN SUBMISSIONS
Rachel Weasner, Applicant
Jennifer Zdriluk, Counsel
Institute of Complementary and Alternative Therapies Inc. and Shirlee Rankin, Respondents
Shirlee Rankin, Representative
background
1This is an Application filed on March 14, 2016 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondents discriminated against her with respect to goods, services and facilities based on her disability.
2On December 23, 2015, the applicant also filed a complaint against the individual respondent, Shirlee Rankin, to the College of Massage Therapists of Ontario (“the College”).
3On December 29, 2015, the College wrote to the individual respondent indicating that the complaint would be placed before a panel of the Inquiries, Complaints and Reports Committee (“the Committee”). The role of the Committee is to investigate complaints and render a decision on them. Following its investigation, the Committee makes a decision which can include one or more of the following:
refer specified allegations to the Discipline Committee for a hearing;
investigate the individual respondent’s capacity;
require the individual respondent to appear before a panel of the Committee to be cautioned;
take other appropriate action such as requiring the individual respondent to undergo continuing education or remediation;
take no action.
4Once the Committee makes its decision, either party has the right to seek a review before the Health Professions Appeal and Review Board, which is independent of the College.
5The applicant also filed a complaint against the corporate respondent to the Ministry of Advanced Education and Skills Development (“the Ministry”) alleging that she was expelled from her program of studies in contravention of the Private Career Colleges Act, 2005.
6In response to an August 23, 2016 Case Assessment Direction in which the Tribunal directed the parties to make written submissions regarding deferral, the respondents filed a Ministry letter dated September 23, 2016 indicating that it had concluded its inquiries and found no evidence to support the applicant’s claim. As a result, the Ministry has closed its file. Given this information, it is not necessary to determine whether the Application should be deferred pending the Ministry’s proceeding.
7This Interim Decision deals with whether the Application should be deferred pending the completion of the College’s proceeding.
Request to defer – parties’ submissions
8The respondents submit that the Application should be deferred as there are ongoing proceedings before other decision-makers that raise some or all of the facts and issues raised in this Application.
9The applicant submits that this is not an appropriate case to defer under s. 45.1 of the Code and Rule 14 and the request should be dismissed.
10With respect to the proceeding before the College, the applicant argues that the complaint does not deal with the same subject matter: it is a complaint related to the individual respondent’s professional misconduct and does not address the allegations of the applicant’s accommodation needs and/or human rights. Also, the available remedies through the College proceeding are substantially different than those available under the Code. Finally, the applicant maintains that the College proceeding is not advanced enough to warrant a deferral of the Application.
DECISION
11Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, 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. 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.
12The 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. The Tribunal will generally defer an application where the parties are engaged in other legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts and order remedies that parallel the Application: see Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280.
13While deferral is not automatic simply because the parties are engaged in another proceeding, deferral does not require that the other proceeding deal with precisely the same legal issues as raised in the human rights application. See, for example, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 ; Deli v. Toronto Police Services Board, 2009 HRTO 330; and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750.
14Some factors that have been identified as 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 types 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404 .
15In this case, while it is clear that there is an overlap in the facts in the Application and the complaint to the College, this is not a case where there are concurrent legal proceedings occurring. I find that deferral is not appropriate at this time. The complaint at the College is only at the initial investigation stage, which may or may not proceed further to a hearing, whereas the Application is ready to proceed to mediation and/or a hearing. See Mandich v. Clinicare Health Services Wonderland Ltd., 2011 HRTO 944.
16I also find that it is not appropriate to defer the Application because, as a matter of law, the College proceeding will have no impact on the Application due to the statutory privilege contained in s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”). 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.
17As the Tribunal found in K.M. v. Kodama, 2014 HRTO 526 , the statutory privilege in s.36(3) is absolute and there are no exceptions to the general prohibition on admitting documents from the College proceeding in a civil proceeding such as a proceeding before this Tribunal. See also C.K. v. William Osler Health System, 2016 HRTO 98 (“C.K.”) and Campo v. Hancock, 2015 HRTO 1066 (“Campo”).
18Section 36(3) of the RHPA prevents the disclosure of any findings made by the College to the Tribunal in this Application process. Since the College proceeding cannot, as a matter of law, have an impact on this case, there is no reason to defer this Application. The Tribunal reached the same conclusion in C.K. and Campo, above, and in King v. Sherbourne Health Centre, 2015 HRTO 1734. For these reasons, I find that deferral is not appropriate in this case.
mediation
19In her Application, the applicant has indicated her consent to proceed through mediation while the respondents have not indicated their consent. The respondents are directed to inform the Tribunal within 7 days of this Interim Decision whether they consent to mediation.
ORDER
20The respondents’ Request to defer this Application based on the applicant’s complaint to the Ontario College of Massage Therapists is denied.
21I am not seized.
Dated at Toronto, this 20th day of October, 2016.
“Signed By”
Josée Bouchard
Vice-chair