Cole v. Ontario (Health and Long-Term Care), 2016 HRTO 497

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ian Cole, by his litigation guardian, Audrey Cole Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care Respondent

-and-

The Canadian Association for Community Living, Community Living Ontario and People First of Canada (the “Coalition”) and the Ontario Human Rights Commission Intervenors

INTERIM DECISION

Adjudicator: Jennifer Scott Date: April 19, 2016 Citation: 2016 HRTO 497 Indexed as: Cole v. Ontario (Health and Long-Term Care)

WRITTEN SUBMISSIONS

Ian Cole, by his litigation guardian, Audrey Cole, Applicant David Baker, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, Respondent Hart Schwartz, Counsel

Introduction

1This Interim Decision addresses two Requests for Orders During Proceedings (“RFOP”) filed by the parties. The applicant has filed a RFOP for an order excluding the expert report of Dr. Radomski, filed by the respondent, on the basis that its admission would amount to an abuse of process. The respondent has filed a RFOP for an order requiring the parties’ expert witnesses, Drs. Radomski, Roney and Popiel, to meet outside of the hearing room, with the benefit of a facilitator, to produce a joint report. The respondent refers to this process as a “Hot Tub”.

The medical evidence

2The central issue in this case is whether the respondent’s limit of four nursing services per day discriminated against the applicant because he was denied the level of care that he required to remain outside of institutional care. The applicant alleges that he required five daily catheterizations performed by a nurse, and therefore required five nursing services per day.

3Dr. Radomski’s expert report concludes that the applicant does not and did not require five catheterizations each day, and does not, and did not need the catheterizations to always be performed by a registered nurse.

4Dr. Roney, the applicant’s urologist, indicates in his will say statement that he recommended an increase in the applicant’s daily catheterizations from four to five in October 2012. Dr. Roney and Dr. Popiel, the applicant’s family doctor, state in their respective will say statements that the applicant requires a registered nurse or a registered practical nurse to administer his catheterizations due to his anatomy and medical conditions.

Abuse of Process

5The Tribunal has held that the doctrine of abuse of process can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an application to continue. The circumstances that can give rise to an abuse of process are not finite, and may include, but are not limited to, circumstances such as delay, re-litigation, settlement, as well as certain issues of procedural unfairness. In attempting to preserve and promote judicial economy, consistency and finality, the focus of the doctrine of abuse of process is on the integrity of the administrative justice system. See Campbell v. Toronto District School Board, 2008 HRTO 62 at paras. 35-41.

6The applicant submits the respondent’s attempt to introduce evidence from Dr. Radomski amounts to an abuse of process because of:

a. The respondent’s delay in challenging the applicant’s disability-related needs;

b. The respondent’s acceptance of the applicant’s needs by its agent, the Community Care Access Centre (the “CCAC”); and,

c. The general unfairness, burdensome cost and inefficiency of permitting the respondent to challenge the applicant’s need in the face of the clear medical opinion of his treating urologist, the litigation guardian’s insurer, and the CCAC, and given the limited relevance and value of Dr. Radomski’s opinion.

7The respondent disputes the applicant’s suggestion that it has delayed challenging the applicant’s disability-related needs. The respondent submits that it has never accepted the applicant’s claim that he requires more than four daily catheterizations or that all catheterizations must be performed by a nurse. It submits further that the CCAC is not an agent of the respondent, but rather, an independent, separate legal person. The respondent also disputes the applicant’s submission that Dr. Radomski’s evidence is not sufficiently probative or valuable to the adjudication of this matter. The respondent states that to exclude Dr. Radomski’s evidence would prevent the Tribunal from adjudicating on the threshold question of whether the applicant has ever been subjected to unequal treatment.

Delay

8In support of his abuse of process argument, the applicant relies, in part, on the respondent’s delay in challenging his medical needs. The applicant states the first time the respondent challenged his need for a fifth catheterization was when it filed the report of Dr. Radomski on January 15, 2016. The applicant submits the nearly two-year delay in the respondent raising this argument has caused prejudice to him. In essence, the applicant claims the failure of the respondent to dispute his need for a fifth catheterization in the Response led him to believe that his medical needs were not in dispute. I do not accept this argument for the following reasons.

9One, the respondent indicated in the Response that it did not have knowledge of the applicant’s medical condition and required medical records from the applicant’s doctors in order to assess the applicant’s medical needs. Absent an express statement by the respondent that it did not dispute the applicant medical needs, I am not prepared to interpret silence as an admission.

10Two, I held a case management conference call with the parties on May 25, 2015, prior to any documentary disclosure by the applicant. On that call, I asked the respondent’s counsel whether the applicant’s requirement for a fifth catheterization was in dispute. Respondent’s counsel advised that it may be in dispute; that he wanted access to the applicant’s medical records; and that the respondent intended to retain its own expert to determine if the fifth catheterization was medically necessary. As such, for the past ten months, the applicant has had notice that his requirement for a fifth catheterization may be in dispute.

11The respondent could not determine whether the applicant’s need for a fifth catheterization by a nurse was, in fact, in dispute until it received disclosure of the applicant’s medical records and reports. Those medical records were disclosed on July 10, 2015 and the will say statements for the applicant’s physicians were disclosed on September 30, 2015. At that point, the respondent retained its own expert to provide an opinion. That opinion was provided in January 2016, six months before the commencement of the hearing on the merits.

12In my view, there has not been any delay in alerting the applicant to the fact that his need for a fifth catheterization by a nurse may be at issue. The respondent was unable to determine whether it was in dispute until it received the applicant’s medical disclosure and retained an expert to provide an opinion. It was only when the respondent was in receipt of that opinion that it was able to advise the applicant that his need for a fifth catheterization by a nurse was contested.

13I also do not accept that the applicant has been prejudiced by Dr. Radomski’s report. He is able to provide a supplementary will say for Dr. Roney in response to Dr. Radomski’s report. The timeline for the provision of a supplementary will say is set out at the end of this Interim Decision.

CCAC

14The second argument advanced by the applicant on his abuse of process request is his claim that the applicant’s need for a fifth catheterization by a nurse has already been determined by the CCAC, and the respondent should not be permitted to re-litigate this issue.

15Before determining this issue, it is important to describe the decision made by the CCAC to fund the fifth catheterization/nursing service. The CCAC funded a fifth nursing service for a three-month period when it interpreted the Regulation as permitting it to do so. That is the funding decision relied upon by the applicant. The applicant also relies on the decision of the CCAC to fund the fifth catheterization after the Regulation was amended in October 2015. However, any decision by the CCAC to fund the fifth nursing service after the Regulation was amended is outside of the scope of this hearing. See Cole v. Ontario (Health and Long-Term Care), 2015 HRTO 1604.

16The applicant submits the CCAC’s decision to fund the fifth catheterization is a decision of the respondent because the CCAC is the agent of the respondent. I do not accept this submission.

17The CCAC is a corporation pursuant to section 1(1) of the Community Care Access Corporations Act, 2001, S.O. 2001, c.33 (the “Act”). Subsection 4(4) of the Act specifically provides that a CCAC is not an agent Her Majesty for any purpose despite the Crown Agency Act. Thus, under the express wording of the Act, the CCAC is not an agent of the respondent. Although this finding is sufficient to dismiss the applicant’s argument that the CCAC is an agent of the respondent, I will explain briefly why I reject the other arguments that he has made on this issue.

18The applicant relies on section 11 of the Act in support of his argument that the CCAC is the agent of the respondent. Subsection 11(1) of the Act provides that the Minister (of Health and Long-Term Care) may issue directions on matters relating to the exercise of a CCAC’s rights and powers and the performance of its duties. The fact that the Minister may issue directions to a CCAC does not mean the CCAC is the agent of the Ministry. I agree with the respondent that the CCAC is no more an agent of the respondent than is a municipality, police services board, hospital or university – all of which must comply with ministerial directives of various kinds.

19In further support of his agency argument, the applicant relies upon decisions of the Tribunal which have held police officers are the agents of police services boards. The relationship between police officers and police boards is fundamentally different than the relationship between the respondent and the CCAC. Police boards are the functional equivalent of the employers of police officers. See Toronto (City) Police Service v. Phipps, 2010 ONSC 3884 at paras. 108-121 (Div. Ct.) (aff’d without addressing this issue, 2012 ONCA 155). The respondent has no employment relationship with the CCAC.

20For these reasons, I find the CCAC is not an agent of the respondent and as such, its actions are not the actions of the respondent.

21In any event, there has been no legal determination regarding the applicant’s need for a fifth catheterization by a nurse. For a three-month period, the CCAC agreed to cover the applicant’s fifth catheterization. A decision by the CCAC to provide a benefit is not synonymous with a legal determination of the applicant’s medical needs.

22In the absence of a legal determination of the applicant’s medical needs, the concept of “re-litigation” simply does not apply. If there has been no legal determination, there is no risk of duplicative litigation, potential inconsistent results, undue cost, and inconclusive proceedings, the very things the abuse of process doctrine is designed to prevent. See Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44.

23In a similar vein, there has been no “proceeding” which has determined the applicant’s medical needs for the purposes of section 45.1 of the Code. If nothing else, a proceeding implies that a neutral third person has applied an objective legal standard to a certain set of facts and reached a conclusion. There is no information before me about the process followed by the CCAC when it decided to fund the fifth catheterization for the three-month period. As such, I cannot find that its process, whatever it was, constituted a proceeding within the meaning of section 45.1. See Maxwell v. Cooper-Standard Automotive Canada Limited, 2013 HRTO 1482 at paras. 37-38. Section 45.1 of the Code does not apply.

24Although the applicant refers to his appeal of the CCAC’s denial of funding for the fifth catheterization to the Health Services Appeal and Review Board (the “Board”), that appeal was withdrawn when the applicant filed his Application with the Tribunal. There was no proceeding before the Board that dealt with the substance of the applicant’s complaint.

25Because the decision to (briefly) fund the fifth catheterization was made by the CCAC and not by the respondent, it cannot be found that the respondent is attempting to re-litigate the applicant’s medical needs. Simply put, this is the first time the respondent is litigating this issue.

26For these reasons, I find the concept of re-litigation does not apply on the facts of this case.

Relevance of Dr. Radomski’s Evidence

27The final basis for the applicant’s abuse of process argument is the assertion that the evidence of Dr. Radomski’s evidence is largely irrelevant.

28The applicant submits that Dr. Radomski has only a cursory understanding of the applicant’s medical situation, based on his review of available medical reports. Without the benefit of Dr. Roney’s personal assessments of his patient, Dr. Radomski is incapable of providing the Tribunal with opinion evidence that could have a bearing on the outcome of this case. The applicant submits the fact that Dr. Radomski disagrees with Dr. Roney is neither relevant nor helpful to the Tribunal because there are a range of medical opinions, about which reasonable urologists may differ.

29In my view, this submission goes to the weight to be given to Dr. Radomski’s evidence. It does not support the applicant’s claim of abuse of process. Dr. Radomski can be cross-examined on his opinion and any argument as to the weight to be given to Dr. Radomski’s evidence can be made at the hearing. Similarly, the applicant seeks to strike two paragraphs of Dr. Radomski’s report, if it is not excluded in its entirety. Again, if Dr. Radomski is providing an opinion about irrelevant matters, the applicant can object to this evidence at the hearing.

30Dr. Radomski has provided an opinion that the applicant does not require a fifth catheterization by a nurse. That opinion is relevant to the question of whether the applicant has been denied a service. It is also relevant to the question of whether the denial of a service, if found, is discriminatory because it put the applicant at risk of institutionalization. For these reasons, Dr. Radomski’s evidence will be admitted.

31I want to be clear that no findings have been made regarding Dr. Radomski’s evidence and what conclusions can be drawn from it. The only determination that I have made is that the respondent is entitled to call Dr. Radomski in order to challenge the applicant’s complaint of discrimination.

Conclusion

32The applicant has failed to establish that to accept the evidence of Dr. Radomski would constitute an abuse of the Tribunal’s process. There has not been any delay in putting the applicant on notice that his medical needs were in dispute. The applicant was provided with Dr. Radomski’s report six months before the commencement of the hearing on the merits. There is no attempt by the respondent to re-litigate the applicant’s needs because no legal determination has been made on whether the applicant requires a fifth catheterization by a nurse. Finally, the respondent can rely on Dr. Radomski’s evidence to challenge the applicant’s allegation of a denial of service and his claim of discrimination.

Hot Tub

33The respondent proposes that the expert medical witnesses proposed by the applicant and the respondent, Dr. Radomski, Dr. Roney and Dr. Popiel, meet with the assistance of a facilitator, for the purpose of preparing a joint report. They would be required to exercise their independent, professional judgment in relation to the conference and joint report, and must endeavour to reach agreement, and must not act on any instructions or request to withhold or avoid agreement with the other medical experts. The joint report would specify the matters agreed and not agreed upon and the basis for any disagreement.

34The applicant opposes the request to hot tub on the basis that it will serve no useful purpose and because it is an inefficient use of resources. The applicant states there is a difference of opinion between Dr. Roney and Dr. Radomski that cannot be resolved through a hot tub.

35I agree with the applicant. The parties’ medical doctors disagree about two fundamental issues: the applicant’s need for a fifth catheterization and whether the catheterizations must be performed by a nurse. These witnesses will be cross-examined and findings will have to be made on these two questions. I do not see the utility of engaging in a comprehensive process to try to get them to agree on these two discrete issues. It is simply not an efficient use of the Tribunal’s resources to overlay a facilitation process on top of the hearing process when the issues have already been narrowed.

36That said, the medical evidence in this case may be important to the determination of whether the applicant has experienced adverse treatment and discrimination. I would like the parties’ position on whether the evidence in this case should be heard out of order. In particular, I am proposing that I hear the evidence of Audrey Cole, followed by the evidence of Dr. Popiel, Dr. Roney and Dr. Radomski when the hearing commences.

Order

37The applicant’s request to exclude the evidence of Dr. Radomski as an abuse of process is denied.

38The respondent’s request to hot tub the medical witnesses is denied.

39The applicant may file an amended will say for Dr. Roney by May 10, 2016.

40The parties must provide brief submissions on the order of evidence as proposed in paragraph 36 above by May 3, 2016.