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 Hickey
Respondents
DECISION
Adjudicator: Bruce Best Date: September 6, 2017 Citation: 2017 HRTO 1152 Indexed as: Konesavarathan v. University of Western Ontario
APPEARANCES
Kovarthanan Konesavarathan, Applicant Self-represented
University of Western Ontario, Respondent Alexandre Mouret, Counsel
College of Physicians and Surgeons of Ontario, Respondent Monica Tessier, Counsel
Kristin Hickey, Respondent Kevin Ross and Brendan Farrar, Counsel
Introduction
1This Application as originally filed alleged discrimination with respect to services because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"). By Interim Decision Konesavarathan v. University of Western Ontario, 2016 HRTO 908, dated July 11, 2016 ("July 2016 Interim Decision"), I granted the applicant's request to amend the Application to include the grounds of race, colour, ethnicity, place of origin and gender, and to amend the public interest remedies sought.
2I further directed in para. 6 of the July 2016 Interim Decision that a preliminary hearing be held to consider a number of issues, including whether the Application was untimely, and/or whether the Application should be dismissed on the basis that there was no reasonable prospect that the Application or part of the Application would succeed.
3The hearing was held on June 12, 2017. Though originally scheduled for a full-day in person hearing due to the number of issues to be addressed, the parties requested the option to call in by telephone, which I allowed. The applicant, the respondent College, and the individual respondent chose to call in. The respondent University made submissions in person.
4Early in the morning of June 12, 2017, the date of the hearing, the applicant filed with the Tribunal and delivered to the respondents 23 pages of written submissions, supplementing the 29 pages of submissions he had filed earlier. Given the timing, neither I nor the respondents had an opportunity to review the applicant's submissions prior to the hearing. The applicant asked that he be permitted to rely on the submissions. The respondents asked that if I did so that they be permitted to file additional responding materials. I considered the applicant's June 12, 2017 submissions in reaching my decision. Given my findings, it was not necessary to hear from the respondents.
5For the reasons set out below, the Application is dismissed.
6With respect to the individual respondent, the Application is dismissed on the basis of delay.
7With respect to the University, the only issues are whether the University is vicariously liable for the actions of the individual respondent, or if it condoned or permitted her allegedly discriminatory conduct. In order to be liable under s. 46.3 of the Code, there must first be a finding that the individual respondent had in fact discriminated against the applicant. As the Application is dismissed against the individual respondent, there is no basis to make any finding against the University on that ground. With respect to condoning or permitting her allegedly discriminatory conduct, aside from the fact that there is no indication that the University was aware of any allegations of discrimination against Dr. Hickey, such allegations are also untimely as the refusal to book the applicant with the individual respondent first occurred in 2014, and the ongoing refusal to book him does not extend the limitation period.
8I also find that the Application against the College must be dismissed. The applicant has, as set out below, now narrowed his claim against the College to only address its failure to have sufficiently comprehensive policies to ensure its members do not discriminate against patients with disabilities. He clearly indicates that this is an allegation of systemic discrimination. The claim that he was personally affected by the College's allegedly inadequate policies is, however, dependent on there first being a finding against the individual respondent. As that claim is dismissed, there is no basis for him to proceed against the College.
9Several other issues were also raised in para. 6 of the July 2016 Interim Decision, but given my above findings are not necessary to address.
10The background to the Application and the nature of the allegations are set out in the Interim Decision at paras. 15-21, and it is not necessary to repeat them here.
Recusal Request
11The applicant filed a number of complaints in December 2016 respecting my conduct, rulings and directions in this and other proceedings before the Tribunal; one complaint was filed with the Tribunal Chair, one with the Ontario Ombudsman, and a third with the Law Society of Upper Canada ("Law Society"). He also commenced judicial review proceedings to Divisional Court respecting my decisions dismissing two other applications before the Tribunal. On December 28, 2016, the applicant also filed a Request for an Order During Proceedings ("Request") that I should recuse myself from hearing this Application. The applicant made similar requests in other ongoing applications with which I have been involved.
12In one of those other applications, I declined to recuse myself, based on the reasons set out in Konesavarathan v. Wellington-Dufferin-Guelph Public Health, 2017 HRTO 199 ("Recusal Decision").
13I advised the parties at the beginning of the hearing on June 12, 2017 that the applicant's Request that I recuse myself in this Application was denied for the same reasons set out in the Recusal Decision. The allegations, based on the applicant's disagreement with my rulings or directions, and with respect to my alleged incompetence in the circumstances did not support a reasonable apprehension of bias.
14I will, however, address two particular allegations respecting bias specific to this Application. First, the applicant took exception to my choice of words in a particular passage of the July 2016 Interim Decision, in particular paragraph 15, which stated:
The 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.
15The applicant claimed my use of the phrase "to his satisfaction" was a misstatement of fact, that he had never used this language, and that his allegations were, rather, that in filling out the forms Dr. Hickey had objectively not met the standard required of a physician. He also raised my particular choice of words in the complaints to the Ombudsman, the Tribunal, and the Law Society, as evidence of bias on my part.
16I disagree that I have misrepresented or misstated the applicant's allegations. I had clearly stated, in the previous sentence, that his allegations were that when asked to complete the forms, Dr. Hickey had "either refused to do so, delayed in doing so, or did so inadequately or unprofessionally". My choice of language, "not filling out the forms to his satisfaction" is accurate, and clearly is a reference back to the applicant's specific allegations that her refusing to do so was objectively contrary to her obligations as a physician. There is no basis to conclude that my choice of words, reflecting an undisputed fact that the applicant was not satisfied with Dr. Hickey's approach to his requests, indicated any bias.
17Second, the applicant suggested that my direction in para. 6(d) of the July 2016 Interim Decision that the parties be prepared to provide submissions on whether the allegations against the College should be dismissed on the basis of s. 45.1 of the Code also demonstrated bias. He argued that prior case law of the Tribunal, and binding case law from the Divisional Court, had clearly established that there was no legal basis for me to make that direction, and claims that my including it demonstrates a bias in favour of lawyers, and against him as a self-represented litigant.
18Though initially suggesting that this was also as a result of ignorance of the law on my part, the applicant subsequently noted that I had in fact been counsel in the cases before the Tribunal and Divisional Court addressing the application of s. 45.1 to professional disciplinary proceedings on which he was relying. He then questioned why, given that I was presumably familiar with the law, I would nonetheless seek submissions on what he considered to be a settled issue.
19The reason for that was simple. In my view, the existing case law, including those cases where I had appeared as counsel, had not settled the specific legal issue raised by the respondents. Whether a decision of the Health Professions Appeals and Review Board ("HPARB") could give rise to dismissal under s. 45.1 of the Code was not directly addressed in K.M. v. Kodama, 2014 HRTO 526, or in the judicial review of that decision, Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085 (Div. Ct.) ("De Lottinville") and it was appropriate to permit the parties to make submissions, particularly as the issue was raised by the respondents. That this issue was not settled was further demonstrated by a subsequent decision of the Tribunal, which was also raised by the respondents at the hearing, Tingling v. College of Psychologists of Ontario, 2017 HRTO 384.
20However, the fact that I found it appropriate to hear submissions on a particular issue is not an indication of bias, or an indication that I had prejudged the case. It is a general principle of procedural fairness and the right to be heard to permit parties to be given an opportunity to make submissions on issues in dispute. This is the case even where the case law is settled, if a party wishes to challenge or distinguish such jurisprudence.
21Furthermore, as noted in Noronha v. 1174364 Ontario, 2009 HRTO 1292 at para 17, and in the Recusal Decision at para. 24, experience and knowledge with respect to human rights law is one of the qualifications for being appointed to the Tribunal under s. 32(3) of the Code. Knowing when it is appropriate to hear submissions on a particular issue is part of my role as a Vice-chair of the Tribunal.
22As noted above, however, given that I have found that the allegations against the College have no reasonable prospect of success, it is in any case not necessary for me to address the issue of s. 45.1 to resolve this Application.
Analysis and Findings
Dr. Hickey - Delay
23The first issue I will address is the question of whether the allegations against Dr. Hickey are timely.
24Section 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.
25The Application was filed on January 7, 2016. In order to be timely, the last alleged incident of discrimination would have to have occurred within one year prior to the date of filing, or the applicant would have to meet the test under s. 34(2).
26The last direct contact between the applicant and Dr. Hickey was his appointment with her on October 2, 2014. Though, as noted in the July 2016 Interim Decision, the applicant originally claimed that her decision to terminate their relationship was reprisal for his having raised his Code rights during that appointment, at the hearing his evidence was that he had advised her he would be pursuing the matter with the College, and that he had not expressly raised her conduct as a Code issue before she said she was not comfortable in continuing their relationship. I asked the applicant how indicating he would be reporting her to the College would indicate to Dr. Hickey that he was attempting to enforce his Code rights. His response was that it was not his responsibility to educate her about what constituted a Code issue.
27Dr. Hickey argues that October 2, 2014 was the last alleged incident of discrimination, and that the Application is therefore untimely. The applicant does not dispute that that date was the last contact he had with Dr. Hickey. He argues, however, that there were subsequent incidents that also formed part of a series, and therefore extended the limitation period.
28The question is whether any of the later alleged incidents could be considered an incident of discrimination in a series with the alleged incidents that occurred in 2014, or whether the last incident of alleged discrimination occurred more than one year before the filing of the Application.
29The applicant makes two primary arguments to extend the series of incidents into January 2015; first, that the adverse impact did not occur until March 2015, and second, that Dr. Hickey was not entitled to terminate her relationship with him until January 24, 2015.
No Adverse Impact until March 2015
30The applicant first argues that the last incident of discrimination occurred in March 2015 when he was unable to apply for a residency position in Quebec because he did not have the appropriate documentation from his treating physician. Relying on the Tribunal's decision in Leve v. Grant Thornton LLP, 2015 HRTO 536 ("Leve") at para. 14, he argues that he had not suffered any harm until that point, and therefore that is when the limitation period began to run. Though Leve was an employment case, he argued that the same principles should apply in services cases such as the present.
31I agree that the principles in Leve, as well as the principles in other employment cases respecting advance notice, could also apply to cases respecting services or other social areas. However, I do not agree that the present case involves the applicant having been given advance notice of a decision to take effect in the future. The situation in Leve was a provision in the applicant's partnership agreement respecting mandatory retirement, which would only have had an impact on the applicant in that case when he reached the age of 63. The Tribunal ruled that the adverse impact of the provision only occurred when he was required to retire, rather than when he originally signed the partnership agreement some 8 years earlier.
32The Applicant also relied on two other cases, Dahir v. Corvin Building Maintenance Ltd., 2014 HRTO 1149 ("Dahir") at para. 6, and Yardley v. McMaster University, 2016 HRTO 490 ("Yardley"), at paras. 8-11, where the Tribunal held that the giving of advance notice and that notice taking effect were both incidents in a series for the purposes of s. 34(1)(b) of the Code. However, the situation in those cases is not the same as here. The events of March 2015 were not, as in Dahir and Yardley, further alleged incidents of discrimination by the respondents, but were rather the continuing effect or consequences of Dr. Hickey's earlier decision to terminate the relationship. As noted in Garrie v. Janus Joan Inc., 2012 HRTO 1955, at paras. 40-41, in order to be considered a further incident for the purposes of s. 34(1)(b) of the Code, there must have been fresh steps by the respondent that would make the event stand on its own as an independent incident of discrimination. The consequences of a previous decision, however, do not constitute a further incident.
Was Dr. Hickey entitled to terminate relationship
33It is not disputed that the applicant was entitled to continue to receive medical services from Student Health Services ("SHS") at the University until January 24, 2015. He claims that Dr. Hickey was not legally entitled to terminate the doctor/patient relationship, and therefor he "officially" continued to be Dr. Hickey's patient as long as he was entitled to SHS services. As January 24, 2015 was within the one-year prior to the filing of the Application, he argues that the allegations against Dr. Hickey are therefore timely. The fact, however, that he would continue to have access to SHS does not mean that he was entitled to have Dr. Hickey remain as his physician. In fact, when he contacted SHS after October 2, 2014, he does not dispute that SHS was prepared to book appointments for him with other doctors, just not with Dr. Hickey.
34He argues that when Dr. Hickey attempted to terminate the doctor/patient relationship on October 2, 2014, he immediately informed her of her duties and responsibilities, and that as a highly educated individual she would have understood at that time that she was not permitted to terminate the relationship. He testified at the preliminary hearing that after the October 2, 2014 appointment he believed she would "cool down", would understand her responsibilities and recognize his rights, and change her mind with respect to terminating their relationship.
35He further argues that given his right to use SHS services, when Dr. Hickey told him she was no longer comfortable with their relationship, she was, at best, giving him notice that she would cease providing him with services after January 24, 2015, and as such that date was also an incident in the series based on Leve, Dahir and Yardley, discussed above. However, none of the evidence pointed to by the applicant, either in his written submissions or in his testimony, supports the claim that Dr. Hickey was giving him advance notice that she would cease providing him services on January 24, 2015. To the contrary, it is clear that the applicant understood she intended to terminate their relationship immediately on October 2, 2014. The fact that the applicant did not believe she was legally entitled to do so does not mean she had not in fact done so.
Discoverability
36The applicant's third argument with respect to delay is that he was unaware of the reasons why Dr. Hickey had terminated the doctor/patient relationship until he received her response in his complaint against her to the College, in February 2015.
37The applicant relied on the Court of Appeal decision in Pepper v. Zellers Inc. (Zellers Pharmacy), 2006 CanLII 42355 (ON CA), at para 16, where the Court stated:
The first question in this case related to discoverability, a principle that provides that a limitation period commences when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence. This principle ensures that a person is not unjustly precluded from litigation before he or she has the information to commence an action provided that the person can demonstrate he or she exercised reasonable or due diligence to discover the information. See Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31. The obligation on a plaintiff to exercise reasonable diligence is a positive one: see Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737, [1998] O.J. No. 2799 (C.A.)
38However, the "underlying material facts" in this case were known to the applicant in October 2014. Though he may have received documents in February 2015 which he believed supported his claim, he was nonetheless aware that his relationship with Dr. Hickey had been terminated in October 2014. There is a difference between discovering an incident of discrimination, and uncovering evidence to support a claim.
39I find that the applicant was aware of the alleged discriminatory acts in October 2014. For one thing, the applicant specifically claimed that when Dr. Hickey told him she was not comfortable with the relationship, he immediately raised his Code rights, and then told her that she was not entitled to terminate the relationship as that would constitute reprisal. This claim is inconsistent with his position that he had not discovered the underlying facts necessary to commence an application until February 2015.
40In sum, I do not find the applicant's arguments that the last incident of discrimination occurred after January 7, 2015 to be persuasive. The relationship was terminated on October 2, 2014. Any of the incidents raised by the applicant beyond that date were the individual respondent maintaining her previous decision, were the consequences of that decision, or were related to the applicant becoming aware of additional information which he believed supported his case. None of these actions constitute further incidents of alleged discrimination which could extend the limitation period under s. 34(1)(b) of the Code.
Good faith
41The applicant did not raise any arguments as to why the delay in filing was incurred in good faith for the purposes of s. 34(2), other than he was waiting for the complaint to the College to conclude
42It is well established, however, that waiting for another proceeding to conclude will not in and of itself constitute a good faith reason to justify the late filing under s.34(2). See Mu v. Cargill Foods, 2011 HRTO 846 at paras. 38-42, Abutalib v. Toronto Police Services Board, 2010 HRTO 1697, at paras.15-20, Hollett v. Unifor, 2015 HRTO 29, at para. 24, and Saxon v. Amherstburg Police Services Board, 2015 HRTO 624, at paras. 25-26.
43For the above reasons, I find that the last alleged incident of discrimination respecting the individual respondent occurred more than one year prior to the date the Application was filed, and the applicant has not been able to establish that the delay was incurred in good faith for the purposes of s. 34(2) of the Code. As such, the Application is dismissed against Dr. Hickey.
University
44The applicant has also named the University as a respondent, on the basis that it is vicariously liable for the actions of Dr. Hickey under s.46.3(1), as the services she provided were through the University's SHS.
45The applicant also claimed in his Reply that the University had directly discriminated against him by following Dr. Hickey's request not to schedule any further appointments with her. He claims that as Dr. Hickey's termination of the doctor/patient relationship was discriminatory under the Code, by following her instructions the University was condoning her discriminatory conduct.
46Both of the above arguments would first require a finding that Dr. Hickey's conduct was in fact discriminatory. As I have determined that the allegations against Dr. Hickey are outside the jurisdiction of the Tribunal on the basis of delay, there is similarly no basis on which the Tribunal could find these allegations against the University could be successful. I note further that the applicant has not pointed to any evidence that would indicate that the University may have been aware that he considered Dr. Hickey's decision to terminate the relationship to be discriminatory, and even if timely, I would find on that basis that the allegation of direct discrimination by the University has no reasonable prospect of success.
College
47As set out in the July 2016 Interim Decision at paras. 22-25, the College had raised in its Response the issue of adjudicative and/or statutory immunity under s. 38 of the RHPA, which precludes any proceedings against the College for the good faith performance of its duties. The applicant, in his Reply, then alleged that the ICRC had acted in bad faith in addressing his complaint against the individual respondent.
48In his submissions for the purposes of the summary hearing, however, the applicant indicated he was not pursuing his allegations against the ICRC. His claim against the College was, rather, that it had failed to put in place adequate policies to establish an appropriate accessibility standard for its members to meet when working with individuals with disabilities.
49The applicant described this as an issue of systemic discrimination, and claimed that he had been specifically affected by the College's failure to implement adequate policies through his experience with the individual respondent.
50Section 45.2 of the Code provides:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act. [emphasis added]
51As is made clear in the above section, the power to order a remedy is dependent on the Tribunal first determining that a right has been infringed. The rights the applicant claims were infringed are based on his allegations against Dr. Hickey, which I have found are outside my jurisdiction based on delay, and as such no determination of his allegations will be made. Absent such a determination, I have no jurisdiction to order any remedy against the College for the role it played in any discrimination the applicant allegedly faced from Dr. Hickey.
52What the applicant is asking is to permit the Application against the College to continue as a public interest application. As I noted in Konesavarathan v. College of Physicians and Surgeons of Ontario, 2017 HRTO 973, and in Konesavarathan v. Guelph (City), 2016 HRTO 1453, relying on Carasco v. University of Windsor, 2012 HRTO 195 ("Carasco"), an individual is not entitled to bring what is essentially a public interest application based on a tangential connection to issues that had affected them personally, and that permitting this would be to circumvent the intention of the legislature which, under s. 35 of the Code, provided a distinct mechanism for public interest applications to be heard through an application brought by the Ontario Human Rights Commission; see Carasco at paras. 14 and 17.
53Based on the above, the Application against the College is dismissed.
Order
54For all the above reasons, the Application is dismissed.
Dated at Toronto, this 6th day of September, 2017.
"Signed By"
Bruce Best Vice-chair
