Konesavarathan v. College of Physicians and Surgeons of Ontario, 2017 HRTO 973

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kovarthanan Konesavarathan

Applicant

-and-

College of Physicians and Surgeons of Ontario, The University of Western Ontario, McMaster University, the Governing Council of the University of Toronto, Northern Ontario School of Medicine, Queen’s University, University of Ottawa, and Medical Council of Canada

Respondents

DECISION

Adjudicator: Bruce Best

Date: July 31, 2017

Citation: 2017 HRTO 973

Indexed as: Konesavarathan v. College of Physicians and Surgeons of Ontario

APPEARANCES

Kovarthanan Konesavarathan, Applicant

Self-represented

College of Physicians and Surgeons of Ontario, Respondent

Monica Tessier, Counsel

University of Western Ontario, McMaster University, University of Toronto, Northern Ontario School of Medicine, Queen’s University, and University of Ottawa, Respondents

Sari Springer, Counsel

Medical Council of Canada, Respondent

Elad Gafni, Counsel

Introduction

1This Application alleges discrimination with respect to employment, services, and membership in a self-governing profession because of race, colour, place of origin, citizenship, ethnic origin, disability and age contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).

2The applicant is a foreign-trained physician, or, in the terminology used by the parties, an “international medical graduate” (“IMG”). He seeks to become qualified to practice medicine in Ontario. He alleges that his failure to do so is the result of “complex systemic or institutional discrimination against foreign trained physicians” involving all the respondents.

3By Case Assessment Direction dated September 26, 2016, I directed that a preliminary hearing be held to determine whether some of the allegations should be dismissed as being out of time, and that a summary hearing be held to determine whether the Application should be dismissed as having no reasonable prospect of success. The hearing was held by teleconference on May 3, 2017.

4For the reasons below, the Application is dismissed.

prelimnary issues

5There are two preliminary issues to address. First, the applicant filed a Request for an Order During Proceedings (“RFOP”) that I recuse myself. Second, shortly prior to the hearing date, the applicant filed a further RFOP asking that the six University respondents and their counsel be declared to be dishonest, and that counsel for the Universities be barred from representing her clients before the Tribunal. I will address each of these requests in turn.

Recusal Request

6In December 2016, the applicant filed a number of complaints respecting my conduct; one with the Tribunal, one with the Ontario Ombudsman, and the third with the Law Society of Upper Canada (“Law Society”). On December 28, 2016, the applicant filed his RFOP requesting that I should recuse myself from hearing this Application, based on the above-noted complaints, and in particular respecting my rulings or directions in this and other proceedings involving the applicant. The applicant made similar requests in other applications he has before the Tribunal with which I have been involved.

7In one of the other applications, which involved an ongoing merits hearing which at that point had already had five days of hearing evidence, and was scheduled for two further dates, I addressed the Request, and declined to recuse myself. See Konesavarathan v. Wellington-Dufferin-Guelph Public Health, 2017 HRTO 199 (“Recusal Decision”).

8The applicant also filed complaints with the Law Society respecting the conduct of counsel for the respondents in this matter. These complaints were, apparently, dismissed by the Law Society. The applicant subsequently commenced an application at the Tribunal against the Law Society for its failure to ensure lawyers were properly educated in human rights principles prior to being granted a licence to practice law, with particular reference to alleged incompetence in this regard of myself and all the lawyers representing the respondents in this case. That application is currently being processed by the Tribunal.

9I advised the parties at the beginning of the hearing on May 3, 2017 that the request to recuse 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.

Request respecting University respondents

10The applicant’s Request respecting the University respondents was based on their claim that in order to be selected for an interview for the 2015 or 2016 residency match, a candidate required certain minimum scores on certain exams. The applicant challenged this claim in his Reply, stating that he was aware of a candidate who obtained the minimum scores but nonetheless did not get an interview. In the Request filed on April 18, 2017, the applicant restated the above claims, and argued that the Universities’ claim to the contrary was therefore “dishonest.”

11The Universities responded that their earlier position respecting minimum scores was accurate, as was their position that being granted an interview was based exclusively on exam results. In response to the applicant’s specific claim respecting the other candidate, they also provided further details on the interview selection process, and clarified that being granted an interview was based on a combination and weighting of the two scores relative to other candidates. Contrary to the applicant’s suggestion, the Universities never claimed in their materials that every candidate with the minimum score in both exams received an interview for the 2016 residency year. Rather, as noted in the Universities’ response to the applicant’s Request, a candidate with a score close to minimum in one exam would only be given an interview if her or his score was substantially higher in the other. The Universities claim that this level of detail was not provided in their earlier materials because, in the Applicant’s case, it was simply not relevant as he did not obtain the minimum grade in either exam.

12On reviewing the materials filed, I cannot agree with the applicant’s interpretation of the Universities’ pleadings. There is nothing to support his assertion that the Universities are being dishonest, or that the Universities’ claims in their pleadings could amount to an abuse of process. There is, similarly, no basis to support the applicant’s Request that counsel for the Universities should be excluded from the hearing.

Background and Allegations

13There are three principle allegations in this Application.

College

14In order to independently practice family medicine in Ontario, an IMG must first obtain an independent practice certificate of registration, issued by the College. The College lists the requirements on its website. The specific requirement for registration which the applicant is challenging is “Completion in Canada of one year of postgraduate training or active medical practice with pertinent clinical experience.” The applicant claims this requirement has an adverse impact on IMGs because of the difficulty they may have in obtaining positions. He argues that this particular criterion is in conflict with the Ontario Human Rights Commission’s “Policy on Removing the “Canadian Experience” Barrier,” and that the College should instead provide an individualized assessment of a candidate’s skills. At the time he filed his Application, the applicant had not in fact applied for registration.

15The College argues that it did not establish the Canadian experience requirement, noting that in fact it is a requirement set out in provincial regulations, and which apply to all candidates for registration, whether graduates of a Canadian or international medical school. It further notes that Canadian practice experience is an exemptible requirement, and that the College’s policies specifically provide that the Registration Committee of the College can exempt a candidate from the requirement in appropriate circumstances.

Universities

16Though, as noted above, the applicant took the position that the requirement for Canadian experience is discriminatory, he did take steps to obtain such experience. He applied for a Family Medicine Residency position with the 6 Ontario medical schools (the “University respondents”, or “Universities”). This is a competitive process; according to the Universities, for the 75 family residency positions, there are approximately 1200 applicants each year. The Universities require candidates to have taken two exams prepared and administered by the respondent Medical Council specifically to assess the knowledge and clinical skills of IMGs seeking to practice medicine in Canada, the National Assessment Collaboration Objective Structured Clinical Examination (“NAC-OSCE”), and the Medical Council of Canada Evaluating Examination (“MCCEE”). Initial screening, according to the Universities, is based solely on these scores, and only 300 candidates are given an interview. The applicant did not get an interview. He argues that the Universities’ reliance on these scores as an initial screening tool, in particular the NAC-OSCE, had an adverse impact on him because of his place of origin, and was therefore discriminatory.

17The Universities argue that these allegations have no reasonable prospect of success. They argue that the applicant’s claim that candidates – all of whom are IMGs – were scored differently based on their familiarity with Canadian culture was purely speculative, and that he had pointed to no evidence that would substantiate his belief that this was a factor in his receiving lower marks on the NAC-OSCE.

Medical Council

18The Medical Council administers the NAC-OSCE and MCCEE. The applicant wrote the NAC-OSCE in March 2013, almost three years before he filed the Application. As noted above, he is claiming that the NAC-OSCE test was scored in a manner that was discriminatory.

19His primary allegation against the Medical Council, however, relates to a request for disability accommodation. On January 11, 2015, he wrote to the Medical Council requesting an opportunity to rewrite the test, on the basis that he had health issues in March 2013 which had affected his score. The request was refused on January 21, 2015. After receiving the letter of January 21, 2015, the applicant asked for the Council to reconsider, but the council confirmed its decision in a subsequent letter dated February 10, 2015. The applicant claims the Council failed to accommodate his disability by refusing to permit him to rewrite the test.

20This Application was filed on January 25, 2016. The Council argues that the decision was made more than one year prior to the applicant filing the Application, and as such is out of time.

Analysis

Summary Hearing Process

21The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

22The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

23The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

24Significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his belief that he has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

25As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

26Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the details of this particular case.

Is there No Reasonable Prospect of Success that the Universities Reliance on the NAC-OSCE Exam is Discriminatory?

27The NAC-OSCE is a practical test to determine a prospective physician’s clinical examination skills, using actors as patients.

28The applicant alleges that the NAC-OSCE exam may have been scored in a way which gave preference to individuals who were best able to follow Canadian cultural norms. He claims that he was disadvantaged in this process, and as a result received a lower score. The central allegation against the Universities is the claim that the use of the NAC-OSCE examination score as the criterion for obtaining an interview for a residency position discriminated against him on the basis of ancestry, ethnic origin, and place of origin.

29The applicant alleges constructive discrimination on the basis of s. 11 of the Code, which reads as follows:

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

30The applicant wrote the NAC-OSCE exam in March 2013, and obtained a score of 65. As this was a passing grade, he was entitled to apply for a residency position. He did so for the 2015 placement year, and in December 2014 he was advised that he had not been selected for an interview. He applied again the following year, and was again advised in December 2015 that he would not be interviewed for a 2016 position. In both cases, the reason for his not being given an interview was that his exam scores were too low.

31The Universities indicate that the sole criterion for being given an interview for the 2015 residency positions was the candidate’s score on the NAC-OSCE. For applications for the 2016 year, the initial screening was based on a weighting of the candidate’s scores on the NAC-OSCE and the MCCEE.

32The Universities claim that in order to obtain an interview for 2015, an applicant would have to have had an NAC-OSCE of at least 79. For 2016, in order to be considered for an interview, candidates required an NAC-OSCE of at least 75, and an MCCEE score of at least 300. As noted above, however, the Universities also maintain that simply obtaining the minimum score in both exams would not guarantee an interview, and that the selection in 2016 was based on a combined score of the two exams, such that a candidate with a low score in one of the exams would require a relatively high score in the other in order to obtain an interview.

33I specifically asked the applicant at the summary hearing why he believed the high-score NAC-OSCE requirement discriminated against him on a Code ground. He indicated that he believed that there was an expectation in the practical test that candidates should interact with patients in accordance with Canadian cultural norms. He argued that some of the competencies used in the scoring related to what he called “communication and cultural competence.” The competencies considered in scoring which he specifically referred to in his materials were Communication skills, Language fluency, Data interpretation, and Investigations. Though I understand communication skills and language fluency to be related to competency in communication, it is not clear how data interpretation or investigations could be considered “cultural competencies”, though I understand the applicant to be taking the position that they relate to a candidate’s approach or manner of seeking information, which he claims may be influenced by the candidates cultural background.

34The applicant also expressed the view that he would give more credence to a patient’s views about their disability, having been a patient himself.

35He argued that in his culture, confidence and knowledge are expressed by being humble and speaking modestly, and suggests that by interacting with the actor patients in accordance with his cultural practices, he received a lower score than other candidates. He maintains that this approach may have favoured other candidates who were more familiar with Canadian culture, or who did not have a disability.

36I noted that everyone writing the NAC-OSCE exam would also have trained in another country, and asked the applicant how his concerns with the testing process would be any different for him than for other IMGs taking the exam. I asked specifically what evidence he would present that having Canadian cultural knowledge or background influenced the NAC-OSCE scores. He suggested that it was “quite possible” that candidates from certain European countries may have been given preference. He did not, however, point to any evidence in his possession or that may be reasonably available to him that he might present to support his claim that the NAC-OSCE scoring was biased in favour of Europeans.

37With respect to his having been a patient, while I can see this being an advantage for a physician, the applicant did not point to any evidence he would present that would established that his experience as a patient, or his taking a patient-centric approach to the clinical examination, had worked against him in the NAC-OSCE scoring.

38The applicant also argued that the fact that the NAC-OSCE used actors, rather than real patients, adversely affected those candidates who, such as himself, had prior experience as practicing physicians. He argued that the actors were “programmed” to give only one answer, and that the exam process did not recognize the alterative but equally effective patient interaction skills he had developed as a practicing physician.

39I can see that an individual who had practice experience as a physician may have developed personal approaches to interacting with patients, which, though effective, may not fit within the expectations of a standardized test such as the NAC-OSCE. Even accepting this is a limitation with the test, however, the claim being made by the applicant is that those IMGs who had previously practiced medicine may have been at a disadvantage as compared to IMGs who had never been in practice. That distinction, between doctors who have practiced and those who have not, is not a distinction covered by the Code.

40The applicant claimed that he should have been given alternate ways to demonstrate his competencies. He argues that the Universities should have looked to other indicators of his skills, rather than relying solely on the standardized test. He argues that they had an obligation to take an individualized approach to the assessment of the candidates.

41The Universities and other respondents note that the NAC-OSCE is in fact designed specifically to assess, in a standardized manner, the clinical skill of IMGs, who may come from a broad range of places and cultures. They also note that the use of actors is part of the standardization process, to ensure that all the candidates are being marked based on the same scenario. The applicant acknowledges in his materials that the use of a standardized examination may assist in the narrowing down of applicants, but argues that it should be considered only as a pass/fail exam, rather than giving too much weight to the actual scores.

42The applicant further argues that the scores required by the Universities on the NAC-OSCE were not a bona fide requirement to complete a residency. However, where there is no reasonable prospect of success of establishing that the NAC-OSCE exam or scoring process may result in the exclusion, restriction, or preference of the applicant based on race, colour, ancestry, place of origin or ethnic origin for the purposes of s. 11(1), then whether it is a reasonable or bona fide requirement is not a Code issue. See Konesavarathan v. Guelph (City), 2016 HRTO 1453, at para 27.

43In my view, the applicant has not been able to point to any evidence in his possession or that may be reasonably available to him that would support his beliefs or assumptions that the NAC-OSCE scoring of his exam was biased against him based on any Code ground. As such, I find that there is no reasonable prospect that the applicant will be able to demonstrate that using the NAC-OSCE exam as an initial screening mechanism to determine which applicants will get an interview for a Family Medicine Residency position is discriminatory. The allegations against the University respondents, and, to the extent these allegations are also made against the Medical Council as the administrator of the exam, are therefore dismissed as having no reasonable prospect of success.

Are the Allegations Against the Medical Council Out of Time?

44Section 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.

45The applicant does not dispute that his request to the Medical Council was initially refused on January 21, 2015, which is more than one year before the Application was filed on January 25, 2016. The applicant argues, however, that the time should run from when the Medical Council reconfirmed the decision on February 10, 2015.

46I disagree. The Tribunal’s case law is clear that pursuing an internal appeal or reconsideration of a decision does not extend the time limit under s. 34(1). See Huo v. University of Western Ontario, 2012 HRTO 198 (“Huo”), at 18-21, and Oyewumi v. University of Guelph, 2015 HRTO 1027 at para 16.

47Confirming or restating the reasons for a previous decision is also not a separate incident of discrimination which can extend a limitation period. See Umar v. Shad Valley International, 2011 HRTO 1945, where, at para 13, the Tribunal held that attempts by an applicant to dispute a decision, and a respondent’s standing by its original decision, cannot be said to be further acts of discrimination. See also Huo, at para. 13.

48The reconsideration decision of February 10, 2015 was simply a confirmation of the decision already made on January 21, 2015 to refuse the applicant’s request. It was not a subsequent incident of discrimination, and it does not extend the limitation period under s.34(1).

Good faith

49The applicant also argued that seeking a reconsideration should be considered a good faith reason to extend the time under s. 34(2). He noted, by analogy, that the Divisional Court would consider whether a reconsideration request had been made in determining whether a judicial review application was timely. The applicant did acknowledge that there is no specific limitation period for filing a judicial review of a Tribunal decision.

50I do not agree that the fact that the Divisional Court may take into consideration a reconsideration decision in determining whether a judicial review application was timely is relevant to whether the Tribunal should do so. First, as the applicant acknowledged, there is no statutory limitation period for filing a judicial review application of a Tribunal decision, as there is with filing a claim under the Code. The issue of delay in pursuing a judicial review is always an issue of discretion. Secondly, the purpose and scope of a judicial review application is significantly different than an application to the Tribunal, and in general should not be engaged until the administrative process has run its course. See Aviva Canada Inc. v Taylor, 2017 ONSC 2661 (Div. Ct.), at para. 23.

51Based on the above, I find that the allegations against the Medical Council are out of time under s. 34(1), and the applicant has not been able to demonstrate a good faith reason for the delay for the purposes of s. 34(2). The allegations against the Medical Council are, as such, dismissed.

Requirement for “Canadian Experience”

52The basis for the applicant’s claim against the College is the statement on its website stating the following requirement for registration: “Completion in Canada of one year of postgraduate training or active medical practice with pertinent clinical experience.” He argues that this requirement for Canadian experience is prima facie discriminatory. As noted above, his primary authority for this proposition is the Ontario Human Rights Commission “Policy on Removing the “Canadian Experience” Barrier.” This claim, as it relates to his membership in a self-governing profession, also engages s. 6 of the Code, which reads as follows:

6. Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

53The College agrees that the requirement for a year of post graduate training or active medical practice in Canada is required for all candidates for a license, including graduates of Canadian medical schools, as well as IMGs. It notes, however, that the requirement is not one established by the College, and that the requirement in fact comes from O. Reg. 865/93, made under the Medicine Act, 1991, S.O. 1991, c 30, (the “Registration regulation”).

54Section 3(1)3 of the Registration regulation reads as follows:

3. (1) The standards and qualifications for a certificate of registration authorizing independent practice are as follows:

4. The applicant must have completed one of the following:

i. A clerkship at an accredited medical school in Canada which meets the criteria of a clerkship in clause (a) of the definition of “degree in medicine” in section 1.

ii. A year of postgraduate medical education at an accredited medical school in Canada.

iii. A year of active medical practice in Canada which includes significant clinical experience pertinent to the applicant’s area of medical practice.

55The College states that the requirements listed on its website for registration are taken from the above regulation.

56The Registration Committee of the College does have the discretion to exempt an applicant for any of the above qualifications. See Barbosa v. Health Professions Appeal and Review Board, 2012 ONSC 1761 (Div. Ct.), at paras. 5-6. The College claims that it can, and in fact does, conduct an individualized assessment once an application for registration has been made, including whether it is appropriate to grant an exemption in accordance with its policies.

57The College took the position in its Response that the applicant had no standing to raise the issue of his failure to be given a licence to practice medicine because the applicant had not, in fact, actually applied for a licence, and as such no decision had been made respecting his registration.

58In late July 2016, after the filing of the Reply, the applicant did apply for registration with the College. The College indicates that his application was referred to the Registration Committee of the College in accordance with the applicable legislation. No materials have been filed respecting the applicant’s registration application, in accordance with the direction in s. 36(3) of the Regulated Health Professions Act, 1991, SO 1991, c 18 (“RHPA”).

59The applicant is, however, in any case not raising any claim in this proceeding respecting his actual application for registration with the College. He has made it clear that his claim is based on the statement on the College’s website respecting the Canadian experience requirement, and how that requirement led to the other issues of discrimination against the Universities and Medical Council with respect to his attempts to meet the requirement.

60He argues that it is inappropriate for this allegation to be dismissed at a summary hearing, and that the above statement on the College’s website is sufficient to justify proceeding to a full hearing on the merits to determine whether there is systemic discrimination against IMGs seeking to become licenced to practice medicine in Ontario.

61He argues, specifically, that the statement violates ss. 23(1) and/or (2) of the Code. Those sections, however, refer only to the ground of employment under s. 5 of the Code, and provide as follows:

23. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

(2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

62First, it is not clear that the Canadian practical experience qualification directly or indirectly classifies or indicates qualifications based on any Code ground. However, I do not need to answer that question. The definition of what constitutes “with respect to employment” for the purposes of s.5 of the Code is broad, and encompasses more than what would be considered a traditional employment relationship. See, for example, Chappell v. Securitas Canada Limited, 2012 HRTO 874 at paras. 21-22, and Payne v. Otsuka Pharmaceuticals Co Ltd., 2001 CanLII 26231 (ON HRT). However, in my view it does not encompass the relationship between the applicant and the College. That relationship, and the particular allegation, is clearly under s. 6, respecting membership in a self-governing profession. In my view, s.23 does not apply to the circumstances of this case.

Bitonti v. College of Physicians and Surgeons of British Columbia

63The applicant also relied heavily on the British Columbia Human Rights Tribunal decision in Bitonti v. College of Physicians and Surgeons of British Columbia, 1999 BCHRTD No. 60, 1999 CanLII 35189 (BC HRT), 36 CHRR D/263 (“Bitonti”). That case primarily dealt with an allegation that the College of Physicians and Surgeons of British Columbia (“BC College”) requirements for certification of IMGs expressly distinguished between candidates based on the country where they received their medical training, giving preference to those trained in one of six English-speaking countries. The rules in place in British Columbia at the time provided that an IMG whose medical training was from one of those six countries (called “Category I” candidates) could obtain a license to practice medicine after completing an internship in any of those countries. However, those IMGs who obtained their medical training in any other country (called “Category II” candidates) were required to first complete an internship position in British Columbia. Given the highly competitive nature of obtaining such a position, the Tribunal determined that this rule was discriminatory. As stated at paras. 176-177,

In summary, the Complainants are all physicians whose place of origin was a Category II country and whose medical training was in a Category II country. There is a high correlation between place of training and place of origin. The College implemented a Rule that required persons with Category II medical training to complete a year of internship in Canada. It was a requirement that was virtually impossible for them to meet. The result was that physicians seeking registration with the College having trained in Category II countries had a burden imposed on them that was not imposed on those who trained in Category I countries. Though the two groups are distinguishable by their place of training, due to the high correlation between place of origin and place of training, they are also distinguishable by their place of origin.

Clearly, those persons in Category II were adversely affected by the Rule.

64The conclusion was set out at para 236:

In conclusion, I find that Rule 73, as it read prior to 1993, was not reasonably necessary. In my opinion, the Complainants have established that the College discriminated against them contrary to s. 9 of the Act on the basis of place of origin by imposing more onerous and inflexible registration requirements on graduates of Category II medical schools than on those of Category I medical schools.

65In Bitonti, the BC Tribunal noted that the NAC-OSCE may have been lacking in terms of its assessment of the clinical skills of a physician. However, the Tribunal also specifically held that the BC College could not be expected to individually assess the clinical skills of each candidate; see para. 233.

66The issue in Bitonti was whether Category II candidates were treated differently than those from Category I countries, and not whether they were treated differently than Canadian medical graduates. As noted at para. 185-186:

In Bahkt v. Newfoundland Medical Board (1986), 60 Nfld. and P.E.I.R. and 181 A.P.R. 166 (Nfld. C.A.), the Court considered whether a requirement that graduates of "Category III" medical schools complete a rotating internship and a year of clinical training discriminated on the basis of race or national or ethnic origin contrary to the Charter. The Court said the claim was entirely without foundation. After noting that there were medical practitioners from India in Newfoundland, Gushue J.A. said at p. 179 para. 10:

The fact that a professional governing body may require certain additional training for graduates of foreign universities, which as I understand is not uncommon in any profession, before such graduates may practice their profession in Canada, merely reflects differences in approach and technique and certainly cannot be deemed to be discriminatory in any way.

I do not disagree with this statement, but this does not assist in the determination of whether, in this case, Rule 73, which placed more onerous burdens on some foreign graduates than on others, discriminated on the basis of place of origin.

67As such, the analysis in Bitonti, though finding the BC College’s rules discriminated against certain IMGs, was based on a factual background which is simply not present in the current Application. The issue in Bitonti was whether an express distinction drawn between candidates who obtained their medical education in some countries rather than others was discriminatory. That is not the issue in the present Application.

Conclusion

68The obligation is on the applicant to point to the evidence that would support his claim. The application for registration and the decision made by the College are not the subject of this Application. If the applicant’s registration has been refused, he is entitled to challenge that decision, through whatever legal means are available to him.

69I have also held that s. 23 does not apply, and the applicant cannot rely on that section to support his claim that the Application should proceed.

70The applicant argues for the purposes of a Summary Hearing that the statement of the Canadian practice experience requirement on the College’s website is sufficient, in and of itself, to justify the application going to a hearing on the merits. Determining that issue, however, should not be made in a factual vacuum and unrelated to any evidence of adverse treatment resulting from the application process administered by the College. As such, unless and until such time as the applicant can point to any evidence of discrimination related to his experience with the College it is premature to address this allegation. Section 34(1) of the Code states that an application may be made where a person believes that any of his or her rights under Part 1 “have been infringed.” Generally speaking, an applicant cannot bring an application based on a hypothetical belief that discrimination might occur, but must rather be based on events that have already happened.

71This finding, of course, should not be taken as a determination that the Canadian practical experience requirement in the Registration regulations is not discriminatory, nor should any conclusion be drawn on whether the College should take into consideration an IMG’s experience as a physician outside of Canada in determining whether to grant him a licence.

72Based on all the above, I find that there is no reasonable prospect of success of the applicant will be able to establish discrimination.

Systemic Discrimination

73As noted, this Application makes broad-based allegations that the process for IMGs to become licenced as physicians in Ontario amounts to systemic discrimination. The applicant argues that the Application should proceed on this basis.

74In Carasco v. University of Windsor, 2012 HRTO 195 at para. 17, the Tribunal held that an individual was not entitled to bring what was 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.

75The applicant can only raise issues or incidents of discrimination to which he has personally been subject. Allegations that the respondent has discriminated against others, or that a general culture of ethnic discrimination exists, may be relevant to support the claim that specific incidents were discriminatory, but they cannot be an independent basis on which the Application can continue.

76As I have found that the specific incidents the applicant refers to above have no reasonable prospect of success, there is no basis for the Application to continue simply because the Applicant is alleging systemic discrimination.

Decision

77The application is dismissed.