Adrianna Biondic v. St. Michael’s Hospital, 2016 HRTO 1487

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adrianna Biondic

Applicant

-and-

St. Michael’s Hospital

Respondent

INTERIM DECISION

Adjudicator: Jennifer Khurana

Date: November 22, 2016

Citation: 2016 HRTO 1487

Indexed as: Biondic v. St. Michael’s Hospital

WRITTEN SUBMISSIONS

Adrianna Biondic, Applicant

Self-represented

St. Michael’s Hospital, Respondent

Naomi Calla, Counsel

Shree Bhalerao, Proposed Respondent

Kiersten Taylor, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of disability and reprisal. The purpose of this Interim Decision is to address the applicant’s request to add an additional respondent.

2The applicant filed a Form 10 Request for Order During Proceedings (“Request”) seeking to add Dr. Shree Bhalerao as an individual respondent in these proceedings. The proposed respondent filed a response opposing the Request.

3The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?

2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

3. Would it be fair, in all the circumstances, to add the proposed respondent?

4The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board (“Persaud”), 2008 HRTO 31 at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, above, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

5In the Application, the applicant alleges that the respondent hospital failed to accommodate her multiple chemical sensitivities in the provision of services. The applicant alleges that she experienced adverse effects from disinfectant used by the respondent and from scented laundry detergent used by an unnamed resident who attended at an appointment with Dr. Bhalerao. The applicant also alleges that Dr. Bhalerao initially refused to grant her a second appointment as a reprisal for having claimed her rights under the Code. The applicant seeks to add Dr. Bhalerao because she alleges that he had been informed of her accommodation requests yet rushed through her appointment despite adverse reactions she experienced from chemical products in the room and insisted that the resident remain even after the applicant advised of her sensitivity to the detergent in the resident’s clothing. In the Response, the respondent disputes its liability for the actions of Dr. Bhalerao and claims that he is an independent contractor.

6Applying the considerations set out in Smyth and Persaud, I do not find it appropriate to add the proposed respondent. While the organizational respondent disputes its liability for the actions of Dr. Bhalerao, I do not find that the individual conduct of the proposed respondent is a central issue in the Application which relates to the respondent’s alleged failure to accommodate the applicant’s disability-related needs. In the Application the applicant alleges that she advised Dr. Bhalerao that she felt unwell with the resident in the room and that he did not accommodate her, but also indicates that Dr. Bhalerao said that she could change rooms, and then left the room and returned without the resident. The applicant alleges that she felt rushed through her appointment and that the doctor refused to see her again; however, he later granted her request for a second consultation.

7Further, the proposed respondent has asserted significant prejudice, noting that 17 months have passed since the appointment with the applicant. The applicant has not provided any reason why she did not name the proposed respondent sooner or in her Application. She cites “inadvertence” but does not reconcile her claims that on the one hand Dr. Bhalerao’s conduct is a central issue in the Application with the fact that she filed her Request close to 17 months after the appointment.

8For these reasons the applicant’s Request to add the proposed respondent is denied.

9I am not seized of this matter.