Konesavarathan v. University of Western Ontario, 2016 HRTO 908

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kovarthanan Konesavarathan

Applicant

-and-

The University of Western Ontario,

The College of Physicians and Surgeons of Ontario, and

Kristin Margaret Hickey

Respondents

INTERIM DECISION

Adjudicator: Bruce Best

Date: July 11, 2016

Citation: 2016 HRTO 908

Indexed as: Konesavarathan v. University of Western Ontario

WRITTEN SUBMISSIONS

Kovarthanan Konesavarathan, Applicant

Self-represented

The University of Western Ontario, Respondent

Alexandre T. Mouret, Counsel

The College of Physicians and Surgeons of Ontario, Respondent

Michelle Gibbs, Counsel

Kristin Margaret Hickey, Respondent

Kevin L. Ross, Counsel

1This Application alleges discrimination with respect to goods and services because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). This Interim Decision addresses the applicant’s request to amend the Application, and directs that a number of issues be addressed at a preliminary/summary hearing.

Request to Amend Application

2The applicant filed a lengthy Reply, and a Request to Amend the Application to add the grounds of race, colour, ethnicity, place of origin and sex, and to seek substantial additional public interest remedies. The applicant alleges that upon reading the Responses, he found that he was discriminated against not just because he was a person with a disability, but on intersectional grounds because he was a “Dark South Asian Male with a Disability.” The Reply and Request to Amend did not appear to contain any new allegations, but rather reframed the same incidents as being rooted in discrimination on grounds other than disability and reprisal, and provide significantly more detail with respect to the applicant’s allegations. The respondents all object to the Request to Amend.

Decision on Request to Amend

3The Tribunal has generally taken a non-technical approach to pleadings, and in general has permitted amendments to an application at the reply stage. See Kilpatrick v. Ontario (Attorney General), 2015 HRTO 1301 at para. 7. The Reply and the Request to Amend essentially now present a new theory of the case by which the applicant is seeking to provide additional discriminatory grounds for the allegedly adverse treatment he received. The Tribunal has similarly permitted an applicant to amend the remedies sought at the early stages of the proceedings. See Godin v. 4036464 Canada Inc., 2016 HRTO 181, at para 11.

4The Request to Amend the Application, including the remedy, is granted. The amendment is made without any determination by the Tribunal on the merits, or on the appropriateness of the remedies sought, and without prejudice to any position the respondents take regarding either.

5As I am also directing that a preliminary/summary hearing be held in this matter, as set out below, the respondents do not need to file amended Responses unless further directed by the Tribunal.

Preliminary / Summary hearing

6The Application and Reply raise numerous allegations against the respondents. However, upon reviewing the materials filed by the parties, I find it is appropriate to hold a preliminary hearing to determine:

a. whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed;

b. whether the Application is barred against the College of Physicians and Surgeons of Ontario (the “CPSO”) on the basis of adjudicative and/or statutory immunity.

c. whether some or all of the allegations may be untimely;

d. whether the substance of the Application has been appropriately dealt with in another proceeding for the purposes of s.45.1 of the Code,

e. whether the respondent University of Western Ontario (the “University”) may be liable for the actions of the individual respondent;

f. whether the Application as against the CPSO should proceed separately from the Application as against the University and the individual respondent.

7Though some of these issues may not ultimately need to be addressed by the Tribunal if the Application is otherwise dismissed, the parties should be prepared to make oral submissions on all the above at the preliminary hearing. This Interim Decision contains important directions for the parties about the issues above that will be addressed at the hearing.

is there no reasonable prospect that the Application or part of the Application will succeed?

8The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondents' adverse treatment of the applicant is based, at least in part, on the applicant’s race, gender, disability or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.

9In this case, the Tribunal has decided to hold a summary hearing because:

a. It appears that the applicant may be unable to prove that there is a connection between what the respondents are alleged to have done, and the grounds of disability, race, colour, ethnicity, place of origin and sex cited in the Application and Reply. That is, although the applicant may believe that the conduct of the respondent is connected to the grounds, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain.

b. Some or all of the issues the applicant is raising do not appear to fall under the Code. The focus of this inquiry is on the legal basis for the applicant’s claim and whether or not there is any reasonable prospect the allegations may amount to a Code violation; and

c. The reprisal section of the Code only applies to the actions of a respondent that are intended as a reprisal for any of the following:(1) claiming or enforcing a right under the Code;(2) instituting or participating in proceedings under the Code; or,(3) refusing to infringe the right of another person under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273; Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish the respondents intended to reprise against him for one of these three things.

10Unlike other preliminary matters, which are determined on a balance of probabilities, the test the Tribunal applies at a summary hearing is whether an application has “no reasonable prospect of success.” If, after examining the allegations and hearing the parties’ submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed.

11At a summary hearing, unless there is some clear evidence to the contrary, the Tribunal assumes the facts alleged by the applicant to be true. For example, if an applicant alleges they were fired from their employment or denied a service, the Tribunal will assume this to be true for the purposes of the summary hearing. However, accepting that someone experienced adverse treatment does not include accepting the applicant’s assumptions or belief about why they were treated this way.

12The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s belief that the disadvantageous treatment he experienced arises from discrimination. In order to warrant proceeding to a full hearing of the merits some evidence must exist, which goes beyond the applicant’s feeling or belief that a prohibited ground of discrimination played a role in what he experienced. As noted above, the parties will not be submitting evidence for the purposes of the summary hearing portion of the preliminary hearing. However, the applicant should be prepared to explain to the Tribunal what the proposed evidence will be if the Application is allowed to proceed to a hearing on the merits.

13The Application may be found to have no reasonable prospect of success if the applicant is unable to explain how the alleged actions of the respondents, if proven, could amount to discrimination. The Tribunal is mindful of the fact that in some cases an application should proceed further in the hearing process because the respondents are the parties who have control over the evidence by which the applicant might prove his case.

14While the primary focus in the summary hearing is on the applicant’s proposed evidence, the respondents’ allegations may also be considered where the facts are not in dispute or where it is plainly obvious that a fact must be true. However, the Tribunal is careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondents have an alternative explanation of the events.

Allegations against Dr. Hickey

15The applicant alleges that he asked the individual respondent to complete forms to enable him to access certain benefits, and that she either refused to do so, delayed in doing so, or did so inadequately or unprofessionally. He claims that she had a duty, as his physician, to meet his disability needs, and that by not filling out the forms to his satisfaction she did not meet that duty. He maintains that this constitutes discrimination on the basis of disability.

Clinical Decisions

16The Tribunal has held that a physician’s clinical decisions will generally not give rise to a claim under the Code, and that in order to amount to discrimination on the basis of disability the applicant must be able to point to some arbitrariness in the manner in which he was treated. See Moshi v. Ontario (Ministry of Community Safety and Correctional Services), 2014 HRTO 1044, at paras. 43-44. The parties may make submissions at the hearing on the issue of whether the allegations, if true, could be considered discriminatory.

Amended grounds

17In his Reply and Request to Amend, as noted above, the applicant further alleges that he was discriminated against not just as a person with a disability, but as a “Dark South Asian Male with a Disability”. The applicant should be prepared to point to some evidence, beyond his own feelings or beliefs, that he would present that would support a link between these grounds and the allegedly adverse treatment.

Reprisal

18With respect to the claim of reprisal, the applicant claims that he told the individual respondent that her actions may be discriminatory, and that she subsequently terminated the patient/physician relationship. The individual respondent denies that the applicant made any comments about the Code, but rather claims he only said he was going to get the CPSO involved. As noted, for the purposes of the summary hearing, the applicant’s version is assumed to be true. However, even accepting that he claimed his rights under the Code is not in and of itself sufficient for the allegation of reprisal to proceed to a hearing on the merits. To establish reprisal under the Code, the applicant must be able to point to some evidence that would establish an intent to reprise on the part of the individual respondent for his having raised the issue of discrimination.

Allegations against CPSO

19The applicant filed a complaint against the individual respondent under the Regulated Health Professions Act, 1991, S.O. 1991 c.18 (“RHPA”) with the CPSO (the “CPSO complaint”). The Inquiries, Complaints and Reports Committee (“ICRC”) of the CPSO made a determination on his complaint (the “ICRC proceeding”), following which he sought a review by the Health Professions Appeals and Review Board (“HPARB”). In June 2016, the HPARB issued its decision; K.K. v K.M.H., 2016 CanLII 33702 (ON HPARB) (“the HPARB decision”). The applicant included a number of documents from the CPSO complaint and HPARB review with his Application.

20The CPSO relies on s.36(3) of the RHPA arguing that the record of the ICRC proceedings is privileged and cannot be used in Tribunal proceedings.

21The applicant does not oppose removing the documents under s.36(3) of the RHPA. He claims, however, that he will still be able to present other evidence that would support his claim that the ICRC proceeding was discriminatory, through his testimony and other documents, such as his medical records, which would be admissible before the Tribunal. The applicant should be prepared at the summary hearing to indicate what evidence, beyond his own feelings or beliefs, that would support his allegations that the CPSO discriminated against him.

Adjudicative and/or Statutory Immunity

22The CPSO further takes the position that the claim against it is barred by judicial and statutory immunity. In particular, it relies on s.38 of the RHPA, which states:

Immunity

No action or other proceeding for damages shall be instituted against the Crown, the Minister, a College supervisor appointed under section 5.0.1 or his or her staff, an employee of the Crown, the Advisory Council, a College, a Council, or a member, officer, employee, agent or appointee of the Advisory Council, a College, a Council, a committee of a Council or a panel of a committee of a Council for an act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act, a health profession Act, the Drug and Pharmacies Regulation Act or a regulation or a by-law under those Acts or for any neglect or default in the performance or exercise in good faith of the duty or power.

23The CPSO noted that the applicant did not allege bad faith in the Application. In the Reply, however, the applicant expressly took the position that the ICRC did act in bad faith. The applicant provided extensive submissions, at paras 28-66 of his Reply, detailing the incidents which he claims would establish bad faith on the part of the ICRC committee members in dealing with his complaint.

24There are two issues which the Tribunal will address at the preliminary hearing with respect to this issue. The first is whether the alleged conduct of the ICRC could, in law, amount to bad faith such that s.38 of the RHPA would not apply. The second issue is whether, even if the alleged conduct could amount to bad faith, whether the applicant is likely to be able to produce evidence, beyond his own feelings or beliefs, that would link the actions of the ICRC to the Code grounds raised in the Application and Reply.

25As the allegation of bad faith was first raised in the Reply, the CPSO has not had an opportunity to provide submissions on the issue of whether the conduct alleged could amount to bad faith in law. The CPSO may do so within 35 days of this Interim Decision.

Are the Allegations Untimely (delay)?

26The University and individual respondent claim that the last event on which the Application is based occurred on November 14, 2014, when the applicant sent a letter requesting the individual respondent complete a medical certificate on his behalf. They also claim that the last face-to-face interaction between the applicant and the individual respondent took place on October 2, 2014. They argue that the Application is out of time under s.34(1) of the Code, as both these incidents occurred more than one year prior to the Application being filed on January 7, 2016.

27The applicant claims that the last event was April 15, 2015, the day the decision of the ICRC. He further claims, at page 27 of his Reply, that he called or attended the clinic to make appointments with the individual respondent after November 14, 2014, and that he sent another letter to her asking for her services, though he does not specify what dates these subsequent events occurred.

28In my view, there is an issue of whether the allegations against the University and the individual respondent are timely. Section 34(1) and (2) of the Code read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

29The parties may make submissions at the hearing on whether the Application against the University and the individual respondent is outside the Tribunal’s jurisdiction for this reason.

30The parties shall deliver to each other and file with the Tribunal copies of any further documents, witness lists or cases they intend to rely upon for this portion of the hearing no later than 35 days after the date of this decision. If any party intends to call witnesses for this portion of the hearing, or if the applicant himself intends to testify as a witness, a summary of the witness’ intended evidence must also be filed and delivered.

has the substance of the application been appropriately dealt with in another proceeding?

31The University and individual respondent also seek to have the Application dismissed under s.45.1 of the Code on the basis that the substance of the Application has been appropriately dealt with in the CPSO/ICRC proceeding. As noted above, the applicant sought a review of the ICRC decision at the HPARB, which issued its decision in June 2016.

32The preliminary hearing will address the respondents’ request that the Application be dismissed under s.45.1 of the Code. The parties may wish to refer to the case law cited in Belsky v. Ontario (Government and Consumer Services), 2016 HRTO 272, where the Tribunal stated, at paras 11-12:

In determining whether an Application ought to be dismissed under s.45.1 of the Code, the initial focus is on whether the issues in the human rights Application were decided in another proceeding by an adjudicator with jurisdiction to interpret and apply the Code, and in which proceeding the applicant knew the case to be met and had a chance to meet it. If so, the principle of finality prevents the applicant from relitigating the issues in the human rights Application in an attempt to obtain a different outcome than the one obtained in the earlier proceeding: British Columbia (Worker’s Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at para. 37.

However, that is not an end to the matter. As both parties point out, even where the above-noted elements are present, the Tribunal may decline to dismiss an Application under s.45.1 if it would be unfair in all of the circumstances to do so. Some of the factors that may be taken into account in balancing the principles of finality and fairness include, but are not necessarily limited to, the purpose of the other proceeding, the applicant’s stake in it, the parties’ reasonable expectations about the impact the prior proceeding would have on their broader legal rights, whether the relevant statutory scheme contemplates parallel proceedings, and the broader policy implications of using the results of another proceeding as a basis to dismiss an Application under the Code: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”), as applied in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 and K.M. v Kodama, 2014 HRTO 526, both upheld on judicial review in Ontario (Correctional Services and Community Safety v. De Lottinville, 2015 ONSC 3085, 2015 ONSC 3085 (Div. Ct.); Ormesher v. Schwarz Law LLP, 2014 HRTO 1757. (With respect to the policy implications of dismissing a claim based on a previous administrative proceeding, see also Minott v. O'Shanter Development Company Ltd., 1999 CanLII 3686 (ON CA), 1999 CanLII 3686 (ONCA)).

33The parties should also be prepared to provide submissions on whether or to what extent the findings of fact and determinations in the HPARB decision would be binding on the Tribunal, should the Application not otherwise be dismissed in whole or in part.

Liability of University

Allegations against the University

34The allegations against the University are either that it is deemed liable for the actions of the individual respondent under Code s.46.3, or that the actions of clinic staff in following the individual respondent’s request to schedule further appointments with a different physician were condoning her discriminatory actions.

35Both the individual respondent and the University claim that she was an independent contractor, not an employee of the University, and that even if her actions were found to be discriminatory, the University would not be deemed liable under s.46.3 of the Code.

36The parties have already made extensive submissions on these issues in the pleadings. The parties may also make oral submissions on these issues at the preliminary hearing.

Severing Application

37If the Application is not otherwise dismissed, it may be appropriate for the Application against the CPSO to proceed separately, given that the allegations are quite separate from those against the individual respondent and the University. The parties may make oral submissions on this issue at the preliminary hearing.

Order

38The Tribunal orders as follows:

a. The Application is amended to include, in addition to disability and reprisal, the grounds of race, colour, ethnicity, place of origin and sex,

b. The applicant’s request to amend the public interest remedies sought in the Application is granted. The remedies are amended to reflect the remedies listed in the applicant’s March 31, 2016 Request to Amend.

Next Steps and Directions

39The Registrar will schedule a full day hearing in person in London. The parties will receive a notice of hearing, setting out the time, date for the preliminary hearing. Although scheduled for a full day, not all preliminary hearings require a full day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.

40The Tribunal notes that the parties have already filed extensive written submissions on the issues to be covered at the hearing, other than the impact of the HPARB Decision on these proceedings, discussed in paras 31 - 33 above, and the CPSO’s submissions with respect to the allegation the ICRC was not acting in good faith. For the other issues, the parties are encouraged to rely on the materials already filed.

For the Summary Hearing

41The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests available on the Tribunal’s website at www.sjto.gov.on.ca/hrto/.

42No witnesses will be called during the summary hearing but the Tribunal will hear the parties’ arguments about whether all or part of the Application should be dismissed because it has no reasonable chance of success. The applicant will proceed first during this summary hearing and must be prepared to address the issues discussed above.

43The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon for this portion of the hearing no later than 35 days after the date of this Interim Decision.

For the Preliminary Hearing

44If the Tribunal determines that all or a part of the Application should be dismissed for one of the other issues listed in para. 6, above, it will be dismissed and the parties will receive a decision containing the reasons for the dismissal.

45If the parties wish to rely on any evidence, witnesses or case law with respect to the issue of delay, they must deliver any additional documents, witness lists or case law they wish the Tribunal to consider to each other and file them with the Tribunal no later than 35 days after the date of this interim decision. If any party intends to call witnesses for this portion of the hearing, a summary of the witness’ intended evidence must also be filed and delivered.