Ren v. College of Massage Therapists of Ontario, 2016 HRTO 147

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grace Ren

Applicant

-and-

College of Massage Therapists of Ontario

Respondent

DECISION

Adjudicator: Mary Truemner

Date: February 1, 2016

Citation: 2016 HRTO 147

Indexed as: Ren v. College of Massage Therapists of Ontario

APPEARANCES

Grace Ren, Applicant

Wade Poziomka, Counsel

College of Massage Therapists of Ontario, Respondent

Julia Brown, Counsel

Introduction

1This Application was filed on September 5, 2014. It alleges reprisal and discrimination with respect to services because of race, ancestry, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The Application alleges that the respondent targeted the applicant and treated her badly by dragging her through investigations and processes because she was Chinese and because she practiced Chinese Massage Therapy.

3The applicant made communications to the public in 2009 about which the respondent became concerned. The respondent initiated an investigation into whether the applicant was claiming that she could treat not only the symptoms of conditions, but also the conditions themselves. The respondent then initiated a proceeding of the respondent's Investigations and Complaints Review Committee ("the Committee"). The Committee ultimately directed the applicant to ensure her communications were that she could treat symptoms but not that she could treat medical conditions outside the scope of the practice of her massage therapy profession. It also required the applicant to complete a Specified Continuing Education and Remediation Program ("SCERP"). The Committee held a hearing on November 15, 2010 for the applicant to report on her progress following her completion of SCERP.

4The Application also specifies that a panel member of the Committee at that hearing demonstrated a discriminatory attitude about her practising Chinese Massage Therapy and being Chinese, and he spoke to her disrespectfully making that attitude clear to her.

5The respondent sent the applicant a letter on January 17, 2011 confirming that she had completed SCERP and the matter was closed. There was soon after a further investigation by the respondent about the applicant's continued communications to the public.

6A subsequent panel of the Committee issued a Decision on July 25, 2013, ("the Decision") not to refer the matter that was the subject of this second investigation to the respondent's Discipline Committee for a hearing, but instead to issue a caution.

7The applicant alleges in her Application that she complained to one of the respondent's staff in the position of Co-ordinator about being discriminated against in the context of her participation with the first Committee panel in November 2010. The applicant believes that the respondent's treatment of her subsequently was at least in part reprisal for having complained of discrimination.

8The Application also states that the applicant called the respondent's Director of Professional Conduct sometime after receiving the Decision, and informed the Director that the Committee must have simply assumed in making the Decision that the applicant communicated poorly with her clients because the applicant is Chinese. The Director never responded to the applicant. The applicant alleges that the respondent therefore failed to meet its duty to investigate an allegation of discrimination.

9On September 16, 2013, the Chair of the Committee issued the formal caution as described in the Decision.

whether the application should be dismissed

10On December 16, 2014, the Tribunal issued a Case Assessment Direction to advise the parties that the Tribunal would schedule a preliminary hearing to determine whether the Application should be dismissed, in whole or in part, on the basis that another proceeding has appropriately dealt with the substance of the Application, whether it would be an abuse of process for the Application to continue, or whether it should be dismissed for delay.

11The matter was deferred pending the outcome of court proceedings.

Position of the Parties

12The matter was reactivated later in 2015, and counsel for the parties attended the preliminary hearing by way of teleconference on November 2, 2015.

13With respect to the delay issue, the respondent argued that the only thing that might be considered to have occurred within one year of the filing of the Application was the actual delivery of the formal caution to the applicant, but, counsel argued, "the fact of the caution" was made aware to the applicant more than a year before the Application.

14The respondent also argued that the September 16, 2013 letter cautioning the applicant, which was the only arguably timely incident, is inadmissible by virtue of s.36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 ("RHPA). That leaves any incidents of alleged breaches of the Code, which might be reviewed by the Tribunal, out of time. They cannot be saved by the September 16, 2013 formal caution letter in the context of any argument that the letter forms the last incident in a series of incidents.

15The applicant argued that the September 16, 2013 letter was indeed the last incident in a series of incidents. The applicant also took the position that the applicant's call to the respondent's Director of Professional Conduct triggered a duty to investigate alleged discrimination because the applicant complained to the Director that the Decision came to a conclusion with no basis in appropriate facts, but simply based on the applicant's status as someone who is Chinese. The applicant's counsel could not provide a date for that call, but stated that it was between the July 25, 2013 Decision, which was released July 25, 2013, and the September 16, 2013 formal caution letter, the implication being that his client's call could have been after September 5, 2013, and therefore an incident within the one-year limitation period of the September 5, 2014 filing date.

16Earlier in the applicant's argument, in the context of whether the Application should be dismissed on the basis that another proceeding has appropriately dealt with the substance of the Application, the applicant argued that s.36(3) of the RHPA should not apply to decisions of the respondent if doing so would prevent the Application from going forward. Section 36(3) of the RHPA was not meant to be used as a shield for a regulatory body to have free licence to discriminate. It was meant to ensure that a doctor could still defend himself/herself in a law suit.

Analysis

17Section 34(1) of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any of the respondents.

18Section 36(3) of the RHPA provides:

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.

19In K.M. v. Kodama, 2014 HRTO 526, ("K.M.") the Tribunal reviewed court decisions that dealt with s.36(3) of the RHPA, to conclude that the section contains a general and absolute prohibition on admitting the documents listed in that section in civil proceedings such as the Tribunal's proceedings. See F.(M.) v. Dr. Sutherland, 2000 CanLII 5761 (ONCA); Conroy v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324; and Middleton v. Sun Media Corp., [2006] O.J. 1640, (Div. Ct.).

20K.M. was found to be reasonable by the Divisional Court in Ontario (Community Safety and Correctional Services) v De Lottinville, 2015 ONSC 3085, although the Divisional Court did not directly address s.36(3) of the RHPA.

21I agree with the conclusion in K.M. that all the documents listed in s.36(3) of the RHPA are inadmissible in Tribunal proceedings, including decisions such as the Decision issued by the Committee on July 25, 2013 and the resulting formal caution issued on September 16, 2013 in this case. This means that the Decision and the formal caution cannot be characterized as incidents of discrimination as urged by the applicant.

22With respect to the alleged phone call to the Director of Professional Conduct, where the applicant complained that the Committee must have simply assumed in making the Decision that the applicant communicated poorly with her clients because she is Chinese, the applicant alleges that the Director did nothing when she should have. The applicant claims that the Director's failure to investigate is 1) discrimination because there is a "duty to investigate" which didn't happen, and 2) reprisal because the applicant had earlier expressed concerns to the Coordinator that the applicant was being targeted because she is Chinese. For the purpose of my analysis, I will assume, without finding, the complaint's call to the Director was made within the one-year period prior to the Application being filed. I will also assume, without finding, there is a free-standing "duty to investigate", the breach of which can in and of itself give rise to a finding of discrimination. Finally, I will assume, without finding, the Director decided not to respond to the complaint call because she intended to reprise against the applicant for the applicant's complaint earlier to the Coordinator about her Code rights. However, I cannot find that the call to the Director, someone who is an employee of the respondent and/or her lack of a response could constitute an "incident" of a Code violation in the circumstances of this case.

23The Director of Professional Conduct had no power to interfere with the Decision given that it was made by a panel of the Committee. The applicant was taking issue with the substance of the Decision and how she believed the panel must have come to their findings in the Decision through assumptions based on the applicant's Chinese ancestry and origin. While the Director might arguably have had a duty to investigate services provided by staff to the applicant, possibly even by members of the Committee other than through decision-making, any challenge to the Decision and whether or not it's reasoning was discriminatory or unreasonable had to be taken up through the proper channels, which it was. The applicant filed a judicial review of the Decision and it was dismissed. See Ren v. College of Massage Therapists of Ontario, 2014 ONSC 2758 (Div. Ct.), leave to appeal dismissed by the Ontario Court of Appeal, May 25, 2015, File No. M43931. It makes no sense to claim that an employee who had no power or jurisdiction to inquire into or alter the Decision of the Committee had any power to "investigate" much less a duty to do so. The complaint call to the Director cannot be characterized as an incident that violates the Code.

24I am therefore satisfied that the allegations of Code violations against the respondent relate to things that happened more than one year before the date of the filing of the Application. As an aside, I note that much of the alleged discrimination appears to engage s.36(3) of the RHPA, and if those allegations were within time, the Tribunal would need to examine, amongst other things, whether there could be any reasonable prospect of success for them in light of the inadmissibility of documents listed in s.36(3). Given that those allegations are not within time, there is no need for such an examination.

25The Tribunal can accept an Application that is untimely if it is satisfied that the delay was incurred in good faith and no substantial prejudice would result from accepting the Application. To show that a delay was incurred in good faith, the applicant must provide a reasonable explanation for her failure to pursue her rights under the Code in a timely manner. The applicant provided no explanation. I therefore find that the applicant has not met the onus on her to demonstrate that the delay in filing her Application was "incurred in good faith" as required under the Code.

26In the absence of a good faith reason for the delay, it is not necessary for me to consider whether another proceeding has appropriately dealt with the substance of the Application, or whether it would be an abuse of process for the Application to continue.

order

27The Application is dismissed.