Court File and Parties

CITATION: College of Nurses of Ontario v. Trozzi, 2011 ONSC 3659

COURT FILE NO.: 511/10

DATE: 20110613

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: College Of Nurses of Ontario v. Trozzi et al.

BEFORE: Justice Swinton

COUNSEL: Mike McCreary, for the Health Professions Appeal and Review Board, Moving Party/Proposed Intervenor Mark Edelstein, for the College of Nurses of Ontario, Applicant Lisa Cirillo, for Esther Trozzi, Respondent Catherine Pike, for Ontario Human Rights Commission, Respondent Margaret Leighton, for Human Rights Tribunal of Ontario, Respondent

HEARD at Toronto: June 10, 2011

Endorsement

Swinton J.:

[1] The Health Professions Appeal and Review Board (“HPARB”) seeks intervenor status in an application for judicial review of a decision of the Human Rights Tribunal of Ontario (“the Tribunal”) scheduled to be heard by the Divisional Court on June 24, 2011. The College of Nurses (“the College”), the applicant in that proceeding, consents to the intervention. The Ontario Human Rights Commission (“the Commission”) and the respondent Esther Trozzi oppose the motion.

[2] In a factum filed in advance of the motion hearing, HPARB sought to be added either as a friend of the court or as a party. In oral submissions, counsel limited the request to be added as a friend of the court pursuant to Rule 13.02 of the Rules of Civil Procedure, asking that HPARB be permitted to file a factum and to be allowed 15 minutes for oral argument.

[3] A court has discretion whether to permit intervention. Rule 13.02 requires the court to consider whether the party would render assistance to the court. In addition, courts consider factors such as prejudice to the other parties and possible delay (Halpern v. Toronto (City) Clerk, 2000 29029 (ON SCDC), [2000] O.J. No. 4514 (Div. Ct.) at para. 21).

[4] The application for judicial review brought by the College seeks to quash a decision of the Tribunal dated September 17, 2010. The application was commenced in October, 2010.

[5] In its decision, the Tribunal rejected the College’s request that it dismiss Ms. Trozzi’s application under the Human Rights Code, R.S.O. 1990, c. H.19, brought in January 2005 and alleging discrimination by the College on the basis of disability because of conditions placed on her registration to practise as a nurse. Ms. Trozzi had appealed the decision of the College’s Registration Committee to HPARB, which heard the appeal in June 2005 and rendered a decision in November 2006. HPARB dismissed the appeal, finding that the conditions were reasonable and that the College had discharged its duty to accommodate Ms. Trozzi on account of her disability.

[6] The College asked the Tribunal to dismiss the human rights application against it based on s. 45.1 of the Code, which confers a discretion on the Tribunal to dismiss an application if the Tribunal “is of the opinion that another proceeding has appropriately dealt with the substance of the application”. The Tribunal concluded that the substance of the human rights issues raised in Ms. Trozzi’s application had not been appropriately dealt with in the HPARB proceeding, and to allow her to proceed before the Tribunal was not an abuse of process.

[7] Counsel for HPARB stated in oral argument that the Board wished to raise the issue of its jurisdiction before the Divisional Court in the judicial review proceeding, including its power to deal with human rights issues, and to raise policy considerations. Counsel indicated that HPARB would agree with the position of the College that the proper route for review of HPARB’s decisions is to the Divisional Court. Pursuant to s. 70 of the Health Professions Procedural Code (Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18), an appeal lies from a decision in a registration hearing or review to the Divisional Court on questions of fact or law or both.

[8] Intervention is granted when the proposed intervenor can provide assistance to the court in coming to a decision. In the present case, the submissions proposed in oral argument do not appear to add much, if anything, beyond what the College and another intervenor, the Federation of Regulatory Health Colleges of Ontario, will say. Both are well qualified to explain the regulatory system governing registration and appeals to HPARB. The College is taking the position that Ms. Trozzi should have sought review of HPARB’s decision in the courts, rather than continue before the Tribunal.

[9] While counsel submitted that these were the only arguments HPARB wishes to raise, he also indicated that he would be submitting the factum filed for this motion for purposes of the application for judicial review. That factum goes well beyond these narrow issues and comments in some detail on the merits of the Tribunal’s decision. For example, at para. 2, the factum states that the Tribunal

relied on an erroneous analysis of s. 45.1 of the Human Rights Code and in the process acted without jurisdiction as an appellate body, parsing and impugning the Board’s decision contrary to the HRTO’s own jurisprudence, established law including Supreme Court of Canada jurisprudence, the legislative framework governing the registration process for the regulated health professions and the mandate of the Board.

[10] HPARB is seeking intervenor status in a case where its own decision is not under review. Nevertheless, for purposes of this motion, it is instructive to consider the jurisprudence dealing with a tribunal’s standing when the tribunal seeks to intervene in an appeal or judicial review of its own decision. In Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2005 11786 (ON CA), [2005] O.J. No. 1426 at paras. 37-38, the Court of Appeal set out two areas for consideration to guide courts in exercising their discretion whether to grant standing. First is the need for the court to be fully informed. If there is another party available to respond knowledgeably to the attack on the tribunal’s decision, the tribunal’s intervention may not be needed. Second, a court must consider the need to maintain tribunal impartiality and future confidence in its objectivity.

[11] In the present application for judicial review, the decision of the Human Rights Tribunal is subject to judicial review, not that of HPARB. There are parties well able to raise the issues that HPARB wishes to advance – namely, the College and the other intervenor.

[12] To the extent that HPARB wishes to raise issues about its jurisdiction and its own preferred appeal route, those are not the issues on which the application will turn. The application is challenging the jurisdiction of the Tribunal and the soundness of its decision. If the application before the Tribunal proceeds on its merits, there can be no findings of fact affecting HPARB, which is not a party.

[13] Most importantly, the submissions in the factum which HPARB proposes to file go beyond the appropriate role for a quasi-judicial tribunal. The tone is adversarial, alleging that the Tribunal has improperly set itself up as an appellate tribunal and attacking the soundness of the Tribunal’s decision. In effect, HPARB, in the factum, suggests that its decision was right and the Tribunal’s erroneous. That is not helpful to resolve the issues in the application for judicial review. However, to the extent the HPARB decision is relevant in these proceedings, the reasons should speak for themselves. HPARB, as a quasi-judicial body, should not be attacking the reasoning and decision of another quasi-judicial body, the Tribunal, which is applying its own constituent statute.

[14] Had this motion been brought in a more timely fashion, I might have considered whether to allow HPARB to file a new factum much more narrowly focused on its jurisdiction. However, this motion has been brought late in the day, as the application for judicial review has been scheduled for June 24, and the other parties are ready to proceed and should be able to do so. As I am not satisfied that HPARB’s participation is necessary to assist the court in reaching a decision, I would not grant it leave to file a different factum.

[15] Therefore, the motion to intervene is dismissed. No party seeks costs.

Swinton J.

Released: June 13, 2011