CITATION: Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2022 ONSC 6842
DIVISIONAL COURT FILE NO.: DC-21-00000519
DATE: 20221207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Varpio and O’Brien JJ
BETWEEN:
NATHALIE XIAN YI YAN
N. Yan, Self-Represented
Appellant
K. Snukal, for the Human Rights Tribunal of Ontario
– and –
COLLEGE OF TRADITIONAL CHINESE MEDICINE PRACTITIONERS AND ACUPUNCTURISTS OF ONTARIO (CTCMPAO)
E. Richler, for CTCMPAO
Respondent
HEARD at Toronto by videoconference
November 24, 2022
reasons for decision
O’BRIEN j.
Overview
[1] The Applicant, Ms. Yan seeks judicial review of two decisions of the Human Rights Tribunal of Ontario (“HRTO” or “Tribunal”). On September 1, 2020, the HRTO dismissed Ms. Yan’s application against the Respondent, the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (the “College”), following a preliminary hearing. Ms. Yan then sought reconsideration of the HRTO’s decision, which was dismissed on May 27, 2021.
[2] Ms. Yan is a member of the College. In 2018, a decision of the College’s Discipline Committee found that Ms. Yan had engaged in professional misconduct. The Discipline Committee ordered a penalty that included a 10-month suspension from practice. Ms. Yan appealed the findings of professional misconduct as well as the penalty and costs ordered to this Court.[^1]
[3] On June 4, 2019, Ms. Yan filed an application with the HRTO against the College alleging discrimination on the basis of race, colour, ancestry, place of origin, ethnic origin, and creed. Ms. Yan’s application references the College’s investigation into her practice as well as College conduct following the hearing before the Discipline Committee.
[4] Following the receipt of written submissions and an oral preliminary hearing, the HRTO dismissed Ms. Yan’s application on several bases. The first was because the application was out of time, given that there were no incidents of alleged discrimination within the one year preceding the date of filing. Second, the HRTO determined that the application was outside of its jurisdiction because it called for a review of another adjudicator's decision. Finally, the HRTO concluded the application should be dismissed because Ms. Yan would not be able to prove the allegations due to the confidentiality provision contained in the Regulated Health Professions Act, 1991. This provision creates a prohibition against the admissibility of evidence pertaining to the College's investigation and discipline process in subsequent civil proceedings.
[5] In response to Ms. Yan’s subsequent request, the HRTO concluded there was no basis to reconsider its decision.
[6] After the initial decision was issued, College counsel contacted the Tribunal with respect to minor errors contained in it. The HRTO then issued a corrected decision and a further corrected decision.
[7] While the reconsideration request was pending, Ms. Yan filed a "Notice of Constitutional Question". Ms. Yan argued that the College's Council was not properly constituted, and the College should not be able to participate in the proceedings.
[8] In her written submissions to this Court, Ms. Yan made a number of arguments, many of which were not addressed in oral submissions. These arguments were set out with less than perfect clarity, but I understand them to be as follows:
(a) She submits that at the hearing before the HRTO, College counsel failed to inform the HRTO that the College’s Council had become what she describes as “unconstitutional.”
(b) She submits that counsel for the College requested amendments to the HRTO’s September 1, 2020 decision without her consent.
(c) She takes issue with the fact that the decision-maker on the reconsideration decision was the same adjudicator who decided the original application.
(d) She reiterates that she was treated in what she considers to be a discriminatory manner by the College.
[9] In her oral submissions, Ms. Yan submitted that the reason she delayed in filing her application with the HRTO was because she was not aware of the existence or correct name of the tribunal. She had only heard of the Chinese translation, which translated as the “human rights court.” Ms. Yan also orally submitted that the College had engaged in a campaign over a number of years to drive members of Chinese origin from practice. She relied on these submissions in stating that the College had discriminated against her on the basis of creed and ethnic origin.
[10] For the reasons that follow, the application for judicial review is dismissed. In my view, none of Ms. Yan’s submissions provide a basis for interfering in the decisions of the HRTO.
Issues
[11] This application raises the following issues:
(a) Did the College’s constitutional status render the HRTO’s decisions unreasonable?
(b) Was it procedurally unfair or unreasonable for the HRTO to make minor corrections to its initial decision?
(c) Was it procedurally unfair for the same HRTO Vice-Chair to hear the request for reconsideration? and
(d) Has the Applicant raised any other basis to interfere in the decisions of the HRTO?
Analysis
[12] Since the decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, the Court of Appeal for Ontario has consistently confirmed that the appropriate standard of review of HRTO decisions is reasonableness: Briggs v. Durham (Police Services Board), 2022 ONCA 823, at para. 37; Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, at para. 42.
[13] With respect to allegations of procedural unfairness, the task for the reviewing court is to determine whether the required level of procedural fairness has been accorded: Aggarwal v. Sheridan College, 2021 ONSC 1399, at para. 44.
Did the College’s constitutional status render the HRTO’s decisions unreasonable?
[14] There is no merit to Ms. Yan’s submission that the College’s constitutional status had a bearing on the HRTO’s decisions.
[15] At the time of the preliminary hearing, the College did not have a full complement of publicly appointed members on its governing Council. While the College awaited the appointment of additional public members to its Council, the College's Executive Committee exercised the powers of Council. This is permitted by s.12 of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, which authorizes the Executive Committee to carry out the powers of the Council between Council meetings.
[16] However, the composition of the College’s governing Council is irrelevant to Ms. Yan’s application. The HRTO's decisions were based on Ms. Yan's application being outside the Tribunal’s jurisdiction and untimely. The College adduced no evidence at the preliminary hearing and had not yet provided a response to the application. The composition of the College's Council does not raise any issue that affects the reasonableness of the HRTO's decisions to dismiss the application and deny the request for reconsideration.
Was it procedurally unfair or unreasonable for the HRTO to make minor corrections to its initial decision?
[17] The Tribunal’s corrections to its reasons also does not provide a basis to interfere with its decision.
[18] Rule 25.1 of the Rules of Procedure of the HRTO provides that, within 30 days from the date of a decision or order, a party may request that the Tribunal correct a typographical error, error of calculation, or similar error made in the decision or order.
[19] Here, following the release of the initial decision, College counsel wrote to the Tribunal, copying Ms. Yan, to request minor amendments to the decision. Specifically, the original decision incorrectly stated that the committee of the College that heard the discipline matter was the Inquiries, Complaints and Reports Committee (“ICRC”), when in fact it was the Discipline Committee. This was apparent from the face of the Discipline Committee's decisions, which had been filed as part of the College's written submissions on the preliminary hearing. The Tribunal issued a revised decision, mostly correctly naming the Discipline Committee in its revised reasons. However, College counsel then wrote to advise there were still three incorrect references to the ICRC in the decision, which the Tribunal subsequently corrected.
[20] The correction process was procedurally fair and transparent. Ms. Yan was copied on the College's requests and the HRTO's responses. Ms. Yan raised no objection at the time. The corrections were minor errors and in the nature of typographical errors. I do not find any basis to interfere in the Tribunal’s correction of the decision.
Was it procedurally unfair for the same HRTO Vice-Chair to hear the request for reconsideration?
[21] The same Vice-Chair of the HRTO rendered the original decision in this matter, as well as the reconsideration decision. There was no conflict of interest or apprehension of bias based on the Vice-Chair reconsidering her own decision.
[22] The HRTO is authorized to reconsider its own decisions pursuant to s. 45.7 of the Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”). The HRTO’s Practice Direction on Reconsideration provides guidance to litigants with respect to the reconsideration process. This practice direction advises that it is likely a request for reconsideration will be heard by the same adjudicator. It states:
In most cases, the request will be assigned to the same adjudicator who made the decision which is the subject of the request. This practice has been endorsed by the courts because the original decision maker may be in the best position to know whether a reconsideration request raises new issues or submissions.
[23] This Court has repeatedly upheld the Tribunal’s entitlement to determine which of its adjudicators may decide a request for reconsideration. As stated in Aggarwal, at para. 75:
The HRTO is best placed to make such a determination, to which this Court owes deference. Absent evidence of a particular problem, there is nothing prohibiting the original decision maker from considering the Reconsideration Request as well: Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604 at paras. 92 – 99 (Div. Ct.): Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at paras. 16-17 (Div. Ct.).
[24] Ms. Yan did not raise any particular problem with the same Vice-Chair considering the reconsideration request in this case. There is otherwise no basis for a finding of conflict or apprehension of bias. This ground of judicial review therefore fails.
Has the Applicant raised any other basis to interfere in the decisions of the HRTO?
[25] Finally, Ms. Yan’s remaining submissions do not provide a basis for this Court to interfere in the decisions of the HRTO. Ms. Yan has made allegations of discrimination that reiterate those made before the Tribunal. Specifically, in her written submissions to this Court, she takes issue with the College’s investigation of her in 2016 and the 2018 decision of the College’s Discipline Committee. She also complains about the College having posted the Discipline Committee decision on its website. She further states she was treated differently from other members of the College during an incident where she attempted to attend the College’s annual meeting and the College contacted the police to remove her for trespass.
[26] The HRTO dismissed these allegations first on the basis that there were no incidents of alleged discrimination within the one year preceding the date of filing. Subsection 34(1) of the Code provides that applications to the Tribunal must be made within one year after the incident to which the application relates, or, if there was a series of incidents, within one year after the last incident in the series. Pursuant to s. 34(2), a person may apply to the Tribunal after the expiry of the one-year time limit if the Tribunal is satisfied the delay was incurred in good faith and no substantial prejudice would result.
[27] The Tribunal concluded that Ms. Yan failed to explain or point to any evidence as to how the incidents within one year of the filing of her application were linked to any grounds of discrimination under the Code. In addition, the Tribunal found that Ms. Yan’s explanation that she was not aware of the Tribunal until 2018 did not amount to a reasonable explanation for the delay.
[28] In this Court, Ms. Yan’s submissions did not reveal any basis to intervene in the Tribunal’s conclusions on these points. Ms. Yan provided no evidence that being denied access to the College’s premises was linked to an enumerated ground under the Code. Although Ms. Yan stated that she was not aware of the Tribunal’s existence, the Tribunal reasonably addressed this point when the Vice-Chair stated that “[a] lack of knowledge about one’s rights will only amount to good faith if an applicant establishes that he or she had no reason to make inquiries about his or her rights sooner.” As the Vice-Chair noted, Ms. Yan was aware of the outcome of the Discipline Committee decision and indeed initiated an appeal to this Court. The Tribunal’s conclusion that Ms. Yan’s delay was not incurred in good faith, as that term has been interpreted by the Tribunal, was reasonable.
[29] Ms. Yan’s oral submissions that the College had a campaign to drive members of Chinese origin from practice does not alter this conclusion. The statistics and other information Ms. Yan provided to this Court were not found in her application to the HRTO. The College had no notice of these submissions, Ms. Yan did not lead any evidence with respect to them, and the HRTO did not address them. They cannot be raised for the first time in this Court.
[30] The other two bases on which the HRTO dismissed Ms. Yan’s application were the doctrine of adjudicative immunity and the confidentiality provisions of the Health Professions Procedural Code. With respect to the doctrine of adjudicative immunity, the Tribunal noted that the decisions and actions of an adjudicator while performing adjudicative functions are beyond its jurisdiction. The Tribunal found that Ms. Yan had failed to point to any evidence to suggest that College’s timely actions were unrelated to its adjudicative functions. Ms. Yan has not raised any basis for this Court to interfere with this conclusion.
[31] Finally, s. 36(3) of the Health Professions Procedural Code creates a prohibition against the admissibility of documents pertaining to the College’s investigation and discipline process in subsequent civil proceedings. The Tribunal applied this provision to conclude that those documents would be inadmissible before the Tribunal in this case. Ms. Yan would not be able to rely on any of the investigatory or discipline documents in support of her position that the College’s actions were discriminatory. As a result, Ms. Yan’s allegations would have no reasonable prospect of success. Ms. Yan did not raise any basis to interfere with the Tribunal’s decision on this point.
[32] Ms. Yan’s allegations of discrimination in this Court, therefore, also fail as a ground of judicial review.
Disposition
[33] The application for judicial review is dismissed.
[34] The College sought costs on a partial indemnity basis in the amount of $12,855.55. The HRTO filed written submissions but did not make oral submissions. The Tribunal also did not seek costs.
[35] Although Ms. Yan filed a very brief factum in this matter, the time spent by College counsel was not unreasonable. The College needed to address a range of submissions, including some that were not entirely clear. Still, in my view, it is appropriate to reduce the costs claimed slightly. Ms. Yan shall pay costs to the College in the amount of $10,000.
I agree _______________________________
Sachs J
I agree _______________________________
Varpio J
Released: December 7, 2022
CITATION: Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2022 ONSC 6842
DIVISIONAL COURT FILE NO.: DC-21-00000519
DATE: 20221207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Varpio and O’Brien JJ
BETWEEN:
NATHALIE XIAN YI YAN
Appellant
– and –
COLLEGE OF TRADITIONAL CHINESE MEDICINE PRACTITIONERS AND ACUPUNCTURISTS OF ONTARIO (CTCMPAO)
Respondent
REASONS FOR DECISION
O’BRIEN, J
Released: December 7, 2022
[^1]: That appeal was dismissed, as reported at Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2022 ONSC 5464.