Judith Pidgeon v. Human Resources Professional Association, 2016 HRTO 1607

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Judith Pidgeon Applicant

-and-

Human Resources Professional Association and Rebecca Durcan Respondents

DECISION

Adjudicator: Brian Cook Date: December 13, 2016 Citation: 2016 HRTO 1607 Indexed as: Pidgeon v. Human Resources Professional Association

APPEARANCES

Judith Pidgeon Self-represented

Human Resources Professional Association and Rebecca Durcan, Respondents Erica Richler, Counsel

Ontario College of Nurses, Proposed Respondent Prya Morley, Counsel

1This Application alleges reprisal and discrimination because of disability and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). After filing the Application, the applicant filed a request to add the Ontario College of Nurses as an additional respondent.

2After reviewing the Application and the Response received from the respondents, the Tribunal determined that a preliminary hearing should be scheduled to determine if the Tribunal has jurisdiction to deal with the allegations in the Application and to determine if the Application should be dismissed as having no reasonable prospect of success if the Tribunal does have jurisdiction. The preliminary hearing also concerned the applicant’s request to add the Ontario College of Nurses as a respondent.

3The preliminary hearing was held by telephone conference call on November 18, 2016.

The Ontario College of Nurses

4The applicant is a nurse. Her license to practice nursing was suspended by the Ontario College of Nurses. The applicant does not agree that her license should have been suspended and she also believes that process leading up to the suspension of her license was unfair and unjust. The applicant filed an Application with this Tribunal about these issues and matters related to those issues. That Application was dismissed by the Tribunal in Decision 2012 HRTO 1712, dated September 14, 2012. The applicant’s Request for Reconsideration was also dismissed by the Tribunal in Decision 2013 HRTO 184, dated February 6, 2013.

5The allegations about the Ontario College of Nurses in the current Application are essentially the same as the allegations in the earlier Application. As that Application was dismissed, the applicant cannot pursue the same allegations in the present Application. The applicant's request to add the Ontario College of Nurses as a respondent to this Application is therefore denied.

The Human Resources Professional Association

6The applicant was a member of the Human Resources Professional Association (“the HRPA”). As a member, she was required to complete an annual information return. In 2013, the HRPA added a question about whether the member had ever had a finding of professional misconduct, incompetence, or incapacity. When she completed the return in 2013, the applicant did not disclose the earlier finding by the Ontario College of Nurses.

7The HRPA commenced a proceeding before its Professional Misconduct and Discipline Committee. It related solely to the failure to disclose the earlier finding. The Committee found that the applicant had failed to disclose information and determined that this was professional misconduct. The applicant has indicated that she wishes to appeal this decision but has not yet commenced an appeal.

8During the course of the proceeding, the Committee referred the applicant to the Competence Committee of the HRPA to determine if there was any issue about the applicant's professional competence. The Competence Committee arranged for the applicant to be medically assessed. The Competence Committee then found that there was no basis for concern about the applicant's competence. The Competence Committee proposed to withdraw the proceeding at the Competence Committee. The applicant did not consent to the withdrawal. At present, this is an unresolved matter.

9The Application to this Tribunal alleges that the proceedings of the HRPA were discriminatory. In particular, she feels that it was unfair for the HRPA to find her guilty of professional misconduct because of the previous finding by the Ontario College of Nurses because she does not agree with the finding by the College.

The Personal Respondent

10The personal respondent is counsel to the HRPA. At the hearing, the applicant clarified that she is not alleging that the personal respondent personally discriminated or reprised against her. She said that she had named the personal respondent because she was the person the applicant primarily interacted with. However, the applicant agrees that if there was discrimination or reprisal, it was done by the HRPA and not by the personal respondent. The Application as against the personal respondent is dismissed on this basis.

The Registered Human Resources Professionals Act

11The HRPA is a registered regulatory Association that is governed by the Registered Human Resources Professionals Act, 2013, S.O. 2013 (the “Act”), c. 6. Sections 65 and 66 of that Act provide as follows:

65. No record of a proceeding under this Act and no document or thing prepared for or statement given at such a proceeding and no decision or order made in such a proceeding is admissible in any civil proceeding, other than a proceeding under this Act or a judicial review relating to a proceeding under this Act.

66. No action or other proceeding may be instituted against the Association, the Board or any committee, any member or former member of the Association, of the Board or of a committee, or any officer, employee or agent of the Association or of the Board for any act done in good faith in the exercise or performance or the intended exercise or performance of any power or duty of the Association under this Act or for any alleged neglect or default in the exercise or performance in good faith of such power or duty.

12An Application filed with this Tribunal is a “proceeding”. Section 66 provides that a proceeding cannot be started against the Association or any committee of the Association for any act done in good faith.

13While the applicant believes that what happened to her, starting with the actions of the Ontario College of Nurses, are unfair, she did not identify anything that could show that the HRPA acted in bad faith in its dealings with her.

14In addition, under section 65, the applicant would not be able to put into evidence any of the documents that were prepared for a proceeding at the HRPA, including any decision made in any of the proceedings.

15As discussed at the hearing, the Code does not cover all things that a person may experience that are unfair. In this case, in addition to the fact that the Registered Human Resources Professionals Act states that a proceeding, which would include a proceeding under the Code cannot be brought unless there is evidence of bad faith, the same Act prevents the applicant from putting forward any evidence that was produced for the purpose of the proceedings that she feels are unfair.

16The Act does allow for a judicial review of decisions and the restrictions on the production of evidence and documents do not apply to a judicial review. But they do apply to an Application under the Code.

17Even if these were not impediments to the Application, it is not clear how the applicant would prove that the HRPA discriminated against her on the grounds of disability or marital status, or that it reprised against her. Again, while I understand that the applicant feels that the actions taken by the HRPA were unfair, this does not mean that they involved an infringement of her Code-protected rights. The applicant did not identify evidence that is available and that would be admissible that would help her to establish discrimination or reprisal contrary to the Code.

18For these reasons, I find that the Application must be dismissed on the grounds that it cannot proceed because of the provisions of the Registered Human Resources Professionals Act, and because even if it could proceed, there is no reasonable prospect that it could succeed.