C.K. v. William Osler Health System, 2016 HRTO 98

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.K.

Applicant

-and-

William Osler Health System, Paula Rotchford, Simone Vaz and Gagandeep Saund

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: January 21, 2016 Citation: 2016 HRTO 98 Indexed As: C.K. v. William Osler Health System

WRITTEN SUBMISSIONS

C.K., Applicant

Self-represented

William Osler Health System, Paula Rotchford, Respondents

Lee Lenkinski, Counsel

1The applicant filed an Application alleging that the respondents discriminated against her because of her race and colour contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that the respondents discriminated against her with respect to comments they made and in reporting the applicant to the Children’s Aid Society when she sought an early discharge of her newborn babies from the hospital.

2In their Response, the William Osler Health System and Paula Rotchford requested that the Tribunal defer consideration of the Application pending the outcome of complaints that the applicant filed with the College of Physicians and Surgeons of Ontario (“CPSO”) and the Ontario College of Social Workers and Social Services Workers (“OCSWSSW”). The applicant filed complaints against the personal respondents with these two professional bodies. The William Osler Health System and Paula Rotchford submitted that the CPSO and the OCSWCCW are more appropriate forums for the applicant’s complaint.

Analysis

3The Tribunal may defer consideration of an Application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

4Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are: the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

5Although they formally requested a deferral, it appears that what the William Osler Health System and Paula Rotchford are seeking is in fact a dismissal of the Application. There is no basis for any request to dismiss the Application on the basis of the complaints to the CPSO and the OCSWSSW. It is correct to state that this Tribunal does not have jurisdiction to determine whether any of the personal respondents complied with the standards of care required under the professional regulation legislation, regulations or practice directions applicable to them. However, the Tribunal does have jurisdiction to address the violations of the Human Rights Code alleged by the applicant in her Application. The same incidents may give rise both to a complaint to a professional College as well as an application to the Tribunal. While the facts underlying the two claims may be the same, the legal issues are distinct. The CPSO and OCSWCCW have jurisdiction to address whether health professionals breached applicable professional standards, whereas this Tribunal has jurisdiction to address whether the incidents set out in the Application amount to a violation of the Code. For these reasons, it is not appropriate to dismiss this Application on the basis that the applicant has filed complaints to the CPSO and OCSWCCW.

6I also find that it is not appropriate to defer consideration of this Application because, as a matter of law, the CPSO and OCSWCCW can have no impact on this Application due to the statutory privilege contained in s.36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”). Section 36(3) of the RHPA states:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

7As the Tribunal found in K.M. v. Kodama, 2014 HRTO 526, the statutory privilege in s.36(3) is absolute and there are no exceptions to the general prohibition on admitting documents from a CPSO proceeding in a civil proceeding such as a proceeding before this Tribunal.

8Section 36(3) of the RHPA prevents the disclosure of any findings made by the CPSO and/or OCSWSSW to the Tribunal in this Application’s process. Since those findings would not be known, any concern that the College and the Tribunal could make inconsistent findings does not apply and cannot be a reason to defer this Application. The Tribunal reached the same conclusion in Campo v. Hancock, 2015 HRTO 1066 and King v. Sherbourne Health Centre, 2015 HRTO 1734. For these reasons, I find that a deferral is not appropriate in this case.

anonymization

9I have anonymized this Application (used initials) in order to ensure compliance with s. 45(8) of the CFSA which states:

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

ORDER

10The respondent’s Request to defer/dismiss this Application based on the applicant’s complaints to the CPSO and OCSWSSW is denied.

11The applicant’s name has been substituted with her initials, C.K., in the style of cause of this proceeding.

12I am not seized.