HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Manoj Talwar
Applicant
-and-
Grand River Hospital and St. Mary’s General Hospital
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Talwar v. Grand River Hospital
WRITTEN SUBMISSIONS
Manoj Talwar, Applicant
Self-represented
Grand River Hospital and St. Mary’s General Hospital, Respondents
John Morris, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, place of origin, ethnic origin and disability. However, it is clear on the face of the Application that the applicant’s complaint is based on the Code ground of family status.
Background
2The applicant is a surgeon and is engaged in a dispute with the respondents regarding his privileges to practice medicine in the respondent hospitals. The materials filed by the parties indicate an extensive procedural history in this dispute. At present, the applicant is not exercising his surgical privileges. A Joint Medical Advisory Committee of the Hospitals has recommended that the applicant’s medical staff privileges not be renewed. The applicant has requested a hearing before a panel of the Respondents’ Board of Directors and Board of Trustees (the “Board”), pursuant to section 37(7) of the Public Hospitals Act, R.S.O. 1990, c. P. 40. The hearing is currently scheduled for January 23, 2017, at 5:30 p.m. The respondents state in their submissions that such hearings are generally held in the evening because most of the panel members are volunteers and are not available during the day. The applicant states that he has asked the respondents to hold the hearing during normal business hours in light of his childcare and eldercare responsibilities in the evening, but the respondents denied the request and indicated that the hearing would proceed in his absence. The applicant alleges that this refusal amounts to a violation of the Code.
Requests to Expedite and for an Interim Remedy
3On December 12, 2016, the applicant filed a Request to Expedite Proceedings and a Request for Interim Remedy. On December 21, 2016, the respondents filed responses to both requests.
4The Request to Expedite Proceedings in denied. Pursuant to Rule 21.2.1 of the Tribunal’s Rules of Procedure, where the Tribunal denies a Request to Expedite, it need not give reasons.
Request for Interim Remedy
5The interim remedy the applicant seeks is to require the respondents to hold the hearing regarding his privileges during normal business hours, which is the primary remedy the applicant identifies in the Application. The applicant submitted that he has young children at home and an elderly frail mother he is responsible for in the evenings and on weekends. The applicant submitted a declaration from Dr. Vinita Bindlish, who is also a medical doctor. In her declaration, Dr. Bindlish states that she and the applicant have two children, whom they adopted and who are both 10 years old. Dr. Bindlish states that one of the children experiences anxiety issues and the other has special education needs. The children must be picked up and dropped off at school and their personal needs addressed during the evening.
6Dr. Bindlish states that the applicant’s mother is 87 years old and frail. Dr. Bindlish described Mrs. Talwar’s significant medical history. Dr. Bindlish states that Mrs. Talwar continues to live in her own home and manage her own affairs. Nonetheless, Dr. Bindlish states that Mrs. Talwar requires daily monitoring and assistance with activities of daily living, such as meals, medications and transportation.
7Dr. Bindlish states that she is no longer willing to assist the applicant regarding his personal, family and work responsibilities. Dr. Bindlish states that she needs to focus on her professional responsibilities, which include an office and hospital-based practice and emergency calls. Dr. Bindlish also stated that Board meetings have been held during the day in the past.
8The respondents submitted that the Application has no merit. In particular, the respondents submitted that the hearing before the Board is a quasi-judicial proceeding pursuant to the Public Hospitals Act; therefore, the Tribunal has no jurisdiction regarding the Board’s decisions by virtue of judicial/adjudicative immunity and independence. The respondents also submitted that the applicant has participated in or agreed to participate in hearings scheduled to be held in the evening. The respondents submitted that, in fact, the applicant agreed to attend the currently scheduled hearing, albeit “under protest”.
DECISION
9The conditions for awarding an interim remedy are set out in Rule 23.2:
The Tribunal may grant an interim remedy where it is satisfied that:
a. the Application appears to have merit;
b. the balance of harm or convenience favours granting the interim remedy requested; and,
c. it is just and appropriate in the circumstances to do so.
10Normally, the Tribunal’s power to order respondents to do or refrain from doing something is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do or refrain from doing something in the absence of a finding that the Code has been violated. For this reason, an applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy: TA v 60 Montclair, 2009 HRTO 269. The Tribunal has generally been more reluctant to order an interim remedy that will create a new state of affairs than one that would preserve an existing state of affairs: VandenBroek v. Villa Otthon, 2011 HRTO 279.
11In TA v. 60 Montclair, the Tribunal stated that since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is “whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.”
12When considering a request for an interim remedy, the threshold for determining whether an application has merit is that there be an arguable case and the claim is not frivolous or vexatious. See TA v. 60 Montclair at paragraphs 30-32. In this case, the applicant appears to have an arguable case. On the other hand, the respondents have raised an equally arguable challenge to the Tribunal’s jurisdiction to deal with this Application. It is not necessary to rule on this jurisdictional issue to dispose of the applicant’s request, but it does put the merits of the Application in question.
13In any event, I am not satisfied that the applicant has met his significant onus in establishing that the Tribunal should award an Interim Remedy. Requiring the respondents to conduct hearings in business hours is one of the primary remedies the applicant seeks in his Application and would create a new state of affairs. The declaration provided by Dr. Bindlish does not indicate that their children would be without care/supervision should the applicant attend an evening hearing or that no one would be able to pick them up from school should the applicant attend an evening hearing. Similarly, Dr. Bindlish stated that Mrs. Talwar requires assistance, but did not indicate either that the applicant was the only person who could assist or that Mrs. Talwar, who lives alone, would be unable to cope without the applicant for a single evening. Should the Tribunal ultimately rule that holding the Board hearing in the evening violated the applicant’s Code rights, then it can, if appropriate, order compensation for any losses caused by the violation and order the respondents to accommodate him. Accordingly, I also find that an interim remedy is not required to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.
14The Request for Interim Remedy is denied.
15I am not seized.
Dated at Toronto, this 23rd day of December, 2016.
“Signed by”
Douglas Sanderson
Vice-chair