Protsuk v. The Ottawa Hospital, 2017 HRTO 1555

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nikita Protsuk as represented by his Litigation Guardian Svetlana Protsuk

Applicant

-and-

The Ottawa Hospital, Kevin Butterfield and Ann Roy

Respondents

INTERIM DECISION

Adjudicator: Esi Codjoe

Date: November 23, 2017

Citation: 2017 HRTO 1555

Indexed as: Protsuk v. The Ottawa Hospital

APPEARANCES

Nikita Protsuk as represented by his litigation guardian Svetlana Protsuk, Applicant

Christine Johnson, Counsel

The Ottawa Hospital, Kevin Butterfield and Ann Roy, Respondents

Jacquie Dagher, Counsel

Introduction

1The applicant filed an Application alleging that the respondents discriminated against him with respect to services because of disability, contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2On February 2, 2017, by Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed, in whole or part, on the basis that there is no reasonable prospect that the Application will succeed. The specific issue raised in the CAD was whether the applicant’s disability was a factor in the quality of medical care, treatment plans/medical treatment and clinical opinions he received.

3In addition, on June 13, 2017 the Tribunal issued a second CAD in response to the respondents’ request that the Tribunal defer consideration of the Application. The CAD directed that the parties provide submissions on whether the Tribunal should defer the Application pending the conclusion of a complaint made by the applicant to the Royal College of Dental Surgeons of Ontario (the “College”).

submissions

4The applicant has multiple disabilities that impact his ability to communicate. He asserts that the respondents subjected him to adverse or differential treatment because of his disability when providing him with medical services.

5To that end, the applicant makes essentially three allegations:

I. The respondents failed to provide reasonable accommodation for his disability-related needs;

II. The respondents inappropriately labelled him as an un-cooperative patient; and

III. The respondents engaged in a reprisal when they cancelled his medical appointment in light of his College complaint.

6First, the applicant alleges the respondents failed to accommodate his disability during dental appointments when they failed to use previously medically recommended techniques for his dental routine. In addition, the applicant asserts that the respondents’ treatment plans failed to accommodate his disability related needs, and would have exposed him to unnecessary risk. Second, he asserts that the respondents deemed him to be a non-cooperative patient because of his disability, and then proposed an inadequate treatment plan based on that determination. Third, the applicant asserts that the respondents engaged in a reprisal when they cancelled a medical appointment in light of his College complaint.

7The applicant submits that the Application should proceed to a merits hearing. He states that the issues that need to be explored are whether the respondents delivered medical treatments or services, or refused to deliver them in a discriminatory manner linked to his disability. He anticipates that he will call expert evidence in support of his case, and that there is a good likelihood that further evidence will be disclosed in the hearing process.

8Next, the applicant submits that deferral of the Application until the conclusion of the College proceeding is not appropriate. He notes that a health professions regulatory body has a different jurisdiction than the Tribunal; the College is concerned with whether dentists have breached applicable professional standards and the Tribunal addresses whether there has been a violation of the Code.

9The respondents submit that the Application does not raise accommodation issues. Rather, they submit the applicant is simply unhappy about the quality of care, treatment plans/medical treatment and clinical opinions/judgements he has received. Further, they submit that the applicant has not been subjected to additional burdens not faced by others. They submit that they used their professional judgement and clinical opinions to ensure the applicant’s wellbeing. In addition, they submit that the Tribunal does not have the jurisdiction to review medical protocols or policies.

10They note that the applicant’s mother (the litigation guardian), continued to refuse all treatment plans and this lead to the breakdown of the clinician-patient relationship. The respondents submit that they did not subject the applicant to a reprisal, rather the individual respondents determined that they could not continue the patient-client relationship given the breakdown in communication/trust.

11Lastly, the respondents submit that in the event that the Tribunal does not dismiss the Application after the summary hearing, it should defer consideration of it pending a decision from the College. They submit that the College process is a concurrent legal proceeding in which the applicant is raising the same human rights issues. According to the respondents, the College has the authority to make determinations about these human rights issues, and as such the Application should be deferred to the other proceeding. Nonetheless, the respondents concede that the College is still in the investigative stage of its proceedings. However, they assert that it is more efficient and expeditious to allow the College to complete its investigation, and decide the substance of the complaint, rather than imposing duplicative proceedings on the respondents.

ANALYSIS

No Reasonable Prospect of Success

12The applicant has made allegations about the nature and scope of the respondents’ efforts to accommodate his disabilities. He has asserted that the respondents took a generalized, instead of an individualized approach to accommodation. The applicant submits that the respondents failed to reasonably accommodate his disabilities up to the point of undue hardship. Further, he submits that the respondents inappropriately labelled him as an uncooperative patient instead of recognizing his disability related care needs. I appreciate that the respondents will put forward a different version of events at the hearing. However, at the summary hearing stage, it is not a sufficient basis to dismiss an application as having no reasonable prospect of success simply because a respondent has a different version of the events at issue and a different explanation for why certain things occurred. The assessment of credibility of that differing explanation is a matter best left for determination at an in-person hearing on the basis of oral evidence. These issues cannot be determined without hearing evidence in a hearing on the merits. Consequently, these two issues shall proceed to a hearing on the merits.

13However, the applicant also asserts that the respondents engaged in a reprisal under the Code when they cancelled an appointment after he filed a College complaint. This allegation has no reasonable prospect of success. In order for an applicant to establish that reprisal, they must point to a respondent action that was intend as a reprisal for asserting their rights under the Code. See Noble v. York University, 2010 HRTO 878 at para. 31. The applicant did not assert his rights under the Code prior to the alleged cancelled appointment, rather he made a College complaint. Therefore he has not demonstrated that the reprisal allegation has a reasonable prospect of success.

Deferral

14The purpose of the deferral of an application is to ensure that proceedings dealing with the same facts and/or issues do not run concurrently; raising the possibility of inconsistent decisions on facts or law.

15The Tribunal’s case law has established a series of factors that should be considered when deciding whether to defer consideration of an application. As noted in Baghdasserians v. 674469 Ontario, 2008 HRTO 404, some of these factors are: the subject matter of the other proceeding, the nature of the other proceeding, the type 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.

16As noted in C.K. v. William Osler Health System, 2016 HRTO 98 (“C.K.”), it is possible that the same set of incidents may give rise to a College complaint, and a Tribunal application. Yet, the Tribunal does not have the jurisdiction to determine whether the individual respondents breached the standard of care as regulated health professionals. The Tribunal does have the jurisdiction to address violations of the Code. The College and the Tribunal have the ability to address different legal issues.

17It is evident that the College complaint and the Tribunal Application in this case are about the same incidents, however there is no legal overlap between the two as the applicant did not assert a violation of the Code in his College complaint. In his College complaint, the applicant alleges breaches of professional standards, while the Application raises allegations of discrimination.

18To the extent that there is a factual overlap between the two cases, I must consider whether it is appropriate for the Tribunal to defer consideration of the Application given the statutory privilege language contained in the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”). Section 36(3) of the RHPA reads as follows:

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.

19The Tribunal has consistently held that s. 36(3) of the RHPA makes the documents listed in the provision inadmissible in Tribunal proceedings; see for example, K.M. v. Kodama, 2014 HRTO 526. In several cases, the Tribunal has refused to defer consideration of applications in cases where there exist ongoing College complaints as a result of s.36(3) of the RHPA. See King v. Sherbourne Health Centre, 2015 HRTO 1734, and C.K. I agree with and adopt the reasons of my colleagues in those decisions to find that deferral would not be appropriate given that any factual findings in the College proceeding can have no impact in this matter due to s.36(3) of the RHPA.

20Given the circumstances I find that a deferral is not appropriate.

Order

21The reprisal allegation is dismissed.

22The Tribunal will continue to process the Application. The applicant has agreed to mediation but the respondents have not. In order to determine the appropriate next step in this case the respondents must advise the Tribunal in writing by December 1, 2017 whether they are willing to attempt mediation in this case. If not, the Tribunal will scheduled a two day merits hearing.

23For the above reasons, the respondents' request to defer the Application pending the conclusion of the College proceeding is denied.

24I am not seized.