College of Nurses of Ontario v. Trozzi

511/10

2011-10-20

2011 ONSC 4614

Ontario Divisional Court

CHRR Doc. 11-3108

College of Nurses of Ontario

Applicant

v.

Esther Trozzi, Ontario Human Rights Commission and Human Rights Tribunal of Ontario

Respondents

and

Federation of Regulatory Health Colleges of Ontario

Intervener

Date of Decision: October 20, 2011

Before: Ontario Superior Court of Justice, Divisional Court, Jennings, Aston and Lederer JJ.

Reasons by: Jennings and Aston JJ.

Dissenting Reasons concurring in the result by: Lederer J.

Appeal from: (2010), 72 C.H.R.R. D/18, 2010 HRTO 1892

File No.: 511/10

Appearances by:

Raj Anand and Mark Edelstein, Counsel for the Applicant

Cathy Pike, for the Respondent Ontario Human Rights Commission

Lisa Cirillo,for the Respondent Esther Trozzi

Margaret Leighton, for the Respondent Human Rights Tribunal of Ontario

Richard Steinecke, for the Intervener

APPEALS AND JUDICIAL REVIEW — appeal of interim ruling — error of law in determining jurisdiction — ADMINISTRATIVE TRIBUNALS — HUMAN RIGHTS TRIBUNALS — COURTS — standard of review of court over administrative tribunals — court of competent jurisdiction to rule on contravention of human rights legislation — privative clause — JURISDICTION — concurrent jurisdiction — COMPLAINTS — substance of complaint dealt with in another proceeding — INTERPRETATION OF STATUTES — definition of "appropriate" and "proceeding"

Summary: The Ontario Superior Court of Justice, Divisional Court, addressed the issue of whether s. 45.1 of the Ontario Human Rights Code gives the Tribunal jurisdiction to hear a complaint when another tribunal has already dealt with the substance of the claim.

Section 45.1 of the Code states: "The Tribunal may dismiss an application, in whole or in part... if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application".

In this case, the Ontario Human Rights Tribunal decided to proceed with a complaint filed by Esther Trozzi against the College of Nurses of Ontario, even though her claim that discriminatory conditions had been placed on her licence had been heard and decided by the Health Professions Appeal and Review Board ("HPARB").

Ms. Trozzi alleged that she was discriminated against because of disability when the College placed a number of unnecessary conditions on her Registered Nurse ("RN") and Registered Practical Nurse ("RPN") certificates.

Ms. Trozzi took her examinations to be registered as an RN in October 2003 and 2004. On both occasions, she sought accommodation of her medical conditions — clinical depression and fibromyalgia. The College provided accommodation and Ms. Trozzi received her registration but with conditions attached. The complainant's view was that her only functional limitations were fatigue and concentration and she had successfully managed these limitations during her practical placements by working fewer shifts and taking extra time to prepare and administer medications.

Nonetheless, in August 2004 the Registration Committee attached 13 conditions to her certificate. Ms. Trozzi was required to advise any prospective employer of these conditions. She was concerned that prospective employers would unfairly assume that the conditions were related to misconduct or that her disabilities would pose a serious risk of poor job performance. The requirement to advise employers was removed in November 2004, but the other conditions were maintained.

In December 2004, Ms. Trozzi appealed to the Health Professions Appeal and Review Board ("HPARB"), which dismissed her appeal. In July 2007, Ms. Trozzi submitted further medical evidence to the College, and the College decided to remove all the conditions on the complainant's certificate of registration as an RN. During the same period, Ms. Trozzi had applied for a certificate as an RPN, which she received subject to the same conditions. These conditions were removed from her RPN licence in 2009.

The College asked for dismissal of the complaint on the grounds that the matter had been dealt with by another proceeding, namely the review by the HPARB. The Tribunal found that the proceeding before HPARB was a proceeding within the meaning of s. 45.1 and that the issue of whether the conditions attached to Ms. Trozzi's RN certificate were discriminatory had been squarely before the HPARB. However, the Tribunal found that HPARB did not deal appropriately with the substance of the complaint because the HPARB failed to assess whether the specific conditions imposed on Ms. Trozzi's licence were reasonably necessary to ensure safe nursing practices or whether the College could have accommodated Ms. Trozzi in alternative ways.

In two concurring decisions, the Ontario Superior Court of Justice determined that the Human Rights Tribunal erred when it declined to dismiss Ms. Trozzi's complaint. The majority concluded that the Tribunal erred because it failed to take into account HPARB's special "public protection" mandate. The HPARB has a specific responsibility to protect public health by ensuring that those licensed to work are able to perform their jobs safely. The Human Rights Tribunal has no expertise in protecting public health, and should not assume jurisdiction in order to substitute its mandate for that of the tribunal with responsibility and expertise in that area.

The majority also found that the Tribunal erred because it determined that the Registration Committee's consideration of Ms. Trozzi's objections to the conditions attached to her licences was not a "proceeding" within the meaning of s. 45.1. This was an error because the Registration Committee's decision was made by a body created by statute which owes a duty of procedural fairness and is subject to both statutory appeal and judicial review.

Both the Registration Committee and HPARB were obliged to apply the Code. They both explicitly did so. It was not the Tribunal's role to pass judgment on the adequacy of HPARB's decision or its reasons. The standard applied by the HPARB was "reasonable accommodation consistent with public protection in health care", which is different from the Human Rights Tribunal's standard of "reasonable accommodation to the point of undue hardship".

Lederer J. concurred in the result, but provided separate reasons. He found that instead of considering whether the HPARB 'appropriately' addressed the substance of Ms. Trozzi's complaint, the Human Rights Tribunal considered whether HPARB 'adequately' addressed the substance of her complaint. The Human Rights Tribunal focused on how the HPARB examined the issue of accommodation. It did not deal with whether the conditions attached to the licences of Esther Trozzi were appropriate in the circumstances.

While rejecting the majority's reliance on the idea that there are tribunals with a "public protection mandate" to which the Human Rights Tribunal owes deference, Lederer J. recognized that the Registration Committee of the College of Nurses and the HPARB have a duty to act in the public interest when registering and setting standards for health professionals. This is the reason that the Human Rights Tribunal should treat the decision of HPARB with great deference. In a sense, every regulatory tribunal is concerned with the public interest, but health care raises a high level of public interest. In this case, the Human Rights Tribunal failed to appreciate the public interest context in which the registration of nurses takes place.

The decision of the Human Rights Tribunal was quashed.

CASES CITED

Ackerman v. Ontario (Provincial Police), [2001] O.J. No. 738 (QL): 21

Audmax Inc. v. Ontario (Human Rights Tribunal) (2011), 72 C.H.R.R. D/36, 2011 ONSC 315: 57

British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U., 1999 652 (SCC), [1999] 3 S.C.R. 3, 35 C.H.R.R. D/257: 54

C.U.P.E., Local 963 v. New Brunswick Liquor Corp., 1979 23 (SCC), [1979] 2 S.C.R. 227: 57

Campbell v. Toronto Dist. School Board (No. 1) (2008), 65 C.H.R.R. D/211, 2008 HRTO 62: 47, 65

Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, 2009 SCC 12: 57

Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9: 23, 57

Ontario College of Art v. Ontario (Human Rights Comm.) (No. 2) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798, 1993 16422 (ON SCDC), 19 C.H.R.R. D/199 (Div.Ct.): 20

Shaw v. Phipps (2010), 71 C.H.R.R. D/168, 2010 ONSC 3884: 57

Tranchemontagne v. Ontario (Dir., Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, 56 C.H.R.R. D/1, 2006 SCC 14: 32, 47

Trozzi v. Ontario College of Nurses (2010), 72 C.H.R.R. D/18, 2010 HRTO 1892: 3, 14, 47

LEGISLATION CITED

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 5(1): 69

s. 6: 3, 10, 69

s. 10: 69

s. 43(8): 18

s. 45.1: 1, 24, 46, 75

s. 45.8: 27, 56

Human Rights Code Amendment Act, 2006, S.O. 2006, c. 30: 12

Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sched. B

s. 8(5): 64

s. 10: 64

s. 21(2): 64

Nursing Act, 1991, S.O. 1991, c. 32: 6

O. Reg. 275/94, s. 5(1): 7

Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sched. C

s. 14(5): 64

s. 15(1): 64

Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 3: 62

Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sched. 2

s. 1(1): 31

s. 4: 37

s. 10: 37

s. 15(2)(a): 7

s. 15(2)(c): 7

OVERVIEW

[1] This judicial review application requires the court to address an important issue not previously decided. To what extent does s. 45.1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") give the Ontario Human Rights Tribunal (the "Human Rights Tribunal" or "Tribunal") a supervisory or residual jurisdiction over complaints made under the Code when another tribunal has already dealt with the substance of such claims?

[2] Section 45.1 reads as follows:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

[3] In this case, the issue centres on a decision of the Health Professions Appeal and Review Board ("HPARB"), a tribunal whose mandate and core responsibilities are somewhat different from those of the Human Rights Tribunal. The College of Nurses of Ontario (the "College") seeks to quash an interim decision of the Human Rights Tribunal September 17, 2010 [reported 72 C.H.R.R. D/18, 2010 HRTO 1892], which rejected the College's request to dismiss Esther Trozzi's application to the Tribunal alleging discrimination on the basis of disability, contrary to s. 6 of the Code. The College contends HPARB has already addressed all of Ms. Trozzi's allegations in an appropriate and adequate manner. It submits her complaint to the Tribunal should be dismissed or stayed.

[4] The Intervener, the Federation of Regulated Health Colleges of Ontario (the "Federation"), supports the College and takes the view that the decision of the Human Rights Tribunal failed to appreciate the public interest context in which the Registration Committee of the College operates.

BACKGROUND

[5] The Federation is an umbrella organization representing about two dozen health regulatory Colleges established under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 as amended ("RHPA") and specific companion statutes such as the Medicine Act, 1991, for physicians and surgeons, and the Nursing Act, 1991, for nurses and practical nurses.

[6] The College of Nurses is a regulatory body whose mandate arises from the RHPA and the Nursing Act, 1991, S.O. 1991, c. 32 as amended. By statute, the College is responsible for governing the nursing profession in the province in the public interest. This includes responsibility for the administration of the registration process for Registered Nurses and Registered Practical Nurses. Esther Trozzi sought registration as a Registered Nurse ("RN") and Registered Practical Nurse ("RPN"). She had been diagnosed with depression and Fibromyalgia which impact on her levels of concentration. Ms. Trozzi successfully completed all mandated testing and practicum requirements for her RN and RPN certifications without issue, though she requested and was granted accommodation of her disabilities in the written examinations.

[7] Following Ms. Trozzi's request for accommodation, the Registrar of the College referred her licence application to the Registration Committee of the College pursuant to s. 15(2)(a) and (c) of the Health Professions Procedural Code, which is Schedule 2 of the RHPA. The Registration Committee has the authority to impose terms, conditions or limitations on a Certificate of Registration. One of the statutory requirements for registration under s. 5(1)4 of O. Reg. 275/94 is that an applicant "must not suffer from a physical or mental condition or disorder that makes it desirable in the public interest that he or she not practice nursing".

[8] On August 27, 2004, the Registration Committee advised Ms. Trozzi of its decision to attach 13 conditions to her Certificate of Registration as a Registered Nurse, mainly related to her future medical treatment, but also including a provision that she inform all prospective employers of the fact that her Certificate was subject to conditions and what those conditions were. At the time, Ms. Trozzi was informed of her right to accept the conditions, or to provide further information to the Registration Committee or to exercise her right to appeal the decision to the HPARB. Ms. Trozzi chose to sign an acknowledgement of the conditions.

[9] On December 6, 2004, Ms. Trozzi was informed that the Registration Committee had decided to impose the same conditions on her RPN registration. Rather than accepting these conditions, Ms. Trozzi appealed the Registration Committee's decision to HPARB, also seeking a review of the conditions on her RN licence. She asserted that her right to be free from discrimination under the Code was being violated. She requested that HPARB conduct its review by written submissions. She provided full particulars of her allegations and argument to HPARB on the application of the Code and the manner in which her specific medical conditions would impact on her ability to perform the duties of an RN.

[10] While the parties were awaiting HPARB's decision, Ms. Trozzi filed a complaint with the Ontario Human Rights Commission on January 3, 2005, alleging discrimination on the basis of disability contrary to s. 6 of the Code. Section 6 of the Code states that every person has a right to equal treatment with respect to membership in any self-governing profession without discrimination on prohibited grounds.

[11] On November 3, 2006, HPARB dismissed Ms. Trozzi's requested review of the Registration Committee's decision to impose conditions. In its reasons, HPARB concluded that those conditions were "reasonable and within the proper mandate and responsibility of the College" and that "the College has discharged its duty to accommodate Ms. Trozzi on account of her disability". Ms. Trozzi did not appeal HPARB's decision. In July 2007, the College requested and received further medical evidence from Ms. Trozzi. Based upon updated medical reports it removed all conditions from both her RPN and RN licences. However, her complaint to the Human Rights Commission remained outstanding and on September 25, 2007, her complaint was referred by the Commission to the Human Rights Tribunal for adjudication.

[12] In June 2008, the Human Rights Code Amendment Act, 2006, S.O. 2006, c. 30 came into effect, including the new provision in s. 45.1 already quoted above.

[13] On April 7, 2009, the College sought to have Ms. Trozzi's complaint dismissed under s. 45.1. The Tribunal's decision of September 17, 2010, dismissed that application, prompting this application for judicial review by the College.

[14] In § 50 of the Human Rights Tribunal's decision it acknowledged that the substance of all of Ms. Trozzi's complaints before the Tribunal were "raised and decided by HPARB" but the Tribunal concluded that HPARB "did not apply the principles of undue hardship and adverse impact and reflect the application of these principles in its reasons".

[15] In addition to its finding that HPARB had not "appropriately dealt with the substance of the [Human Rights Code] application" the Tribunal addressed the alternative arguments of the College. It rejected the College's argument that its Registration Committee is itself a statutory tribunal whose decisions are immune from review and protected by the principle of deliberative secrecy. The Tribunal also rejected the College's argument that the proceeding before the Tribunal constituted a collateral attack, attempting to re-litigate findings of the Registration Committee and/or HPARB.

[16] In the end result, the Tribunal directed that Ms. Trozzi's complaint to the Human Rights Commission proceed and be heard on its merits. That proceeding has been on hold pending this judicial review application.

PREMATURITY

[17] The respondents raise a threshold issue of whether this judicial review application is premature given that the impugned decision is an interim discretionary decision of an expert tribunal.

[18] Ms. Trozzi submits there is well-established law that courts should not intervene in proceedings that are on-going before an administrative tribunal. This approach respects legislative intent and the deference owed to the expert body tasked with deciding these matters. Judicial review of interim decisions often will cause additional delay and expense. Fragmenting proceedings in this way can also result in unnecessary expense because an issue may become moot in the tribunal's final determination of the merits. In this context in particular, the legislature has expressed its intention in s. 43(8) of the Code that an exercise of discretion by the Human Rights Tribunal is not a ground for setting aside a decision unless that exercise of discretion "caused a substantial wrong that affected the final disposition of the matter". The legislation also removed the automatic right of appeal, which Ms. Trozzi submits is a further indication of the superior expertise of the Tribunal in adjudicating human rights matters. No final decision has been made in this case — the adjudication has merely been compelled forward. Therefore, she submits, this application should be quashed.

[19] The Tribunal agrees that this application is premature and should be quashed or dismissed on that basis. If the College disputes the ultimate decision made by the Tribunal on the merits, it will have full recourse to this Court at that time. The Tribunal submits there are no exceptional circumstances to support intervention at this stage.

[20] We acknowledge that judicial review is a discretionary remedy, and that this Court has a well established practice of allowing the process before a tribunal to run to completion before entertaining an application for judicial review. Fragmenting and protracting proceedings before tribunals is to be avoided, and generally this Court will only interfere on a preliminary issue if the tribunal has lost, or never had, jurisdiction. See Ontario College of Art v. Ontario (Human Rights Comm.) (No. 2) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 [1993 16422 (ON SCDC), 19 C.H.R.R. D/199].

[21] We were persuaded that this matter fits within the narrow range of exceptions to that general rule. The issues for the Divisional Court to decide relate to statutory interpretation and jurisdiction and are not dependent upon the evidence which might be adduced in the hearing on the merits. A true issue of jurisdiction arises on a record that is complete. If it is decided in the applicant's favour, what will undoubtedly be a lengthy and expensive proceeding will be avoided. See the decision of this Court in Ackerman v. Ontario (Ontario Provincial Police), [2001] O.J. No. 738 (QL) at § 19 and 26. In that regard, we note with some concern that the parties had to wait some 15 months following the College's motion under s. 45.1 for a decision on that motion.

[22] Accordingly, we declined to quash this application on the grounds of prematurity, and proceeded to hear the application on the merits.

STANDARD OF REVIEW

[23] The Human Rights Tribunal's decision in this matter constituted a determination of the jurisdictional boundaries between competing specialized tribunals. In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at § 61, the Supreme Court of Canada stated:

Questions regarding the jurisdictional lines between two or more competing specialized tribunals have also been subject to review on a correctness basis.

[24] Although the Human Rights Tribunal was interpreting a provision of its core statute, s. 45.1 of the Code, the standard of review on this jurisdictional issue is correctness.

[25] Furthermore, the Human Rights Tribunal was required to interpret the Regulated Health Professions Act, 1991 and general legal principles and doctrines such as abuse of process, collateral attack, adjudicative immunity and deliberative secrecy in its analysis. These issues fall outside the Human Rights Tribunal's specialized expertise and the standard of review is correctness.

[26] That said, if the Human Rights Tribunal was correct in its legal interpretation, its factual findings and its discretionary decision under s. 45.1 are entitled to a high degree of deference. In this case the Human Rights Tribunal did not hear any evidence. Its factual findings essentially consist of its interpretation of the HPARB decision rendered November 3, 200[5].

[27] Section 45.8 of the Code, which is part and parcel of the statutory amendments that came into effect in June, 2008, provides that "a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable". This section applies to findings of fact and the exercise of discretion as well as questions of law or mixed fact and law within the ambit of the Tribunal's core legislation. However, privative clauses such as this do not afford deference to the Tribunal's interpretation of the Regulated Health Professions Act, general legal principles such as the doctrine of abuse of process, collateral attack, adjudicative immunity and deliberative secrecy. Most significantly, the Tribunal must be correct in its determination of the jurisdictional lines between competing specialized tribunals.

ANALYSIS AND CONCLUSIONS

Competing Jurisdictional Boundaries

[28] The fountainhead of the Ontario Human Rights Commission's position is that its specialized expertise in the area of discrimination has been expressly recognized by the legislature under s. 45.1 of the Code. It asserts that this legislative provision gives the Human Rights Tribunal not only residual jurisdiction, but supervisory jurisdiction, because it is left to the Human Rights Tribunal itself to decide if some other statutory decision maker has "appropriately" dealt with the substance of discrimination claims.

[29] Did the Human Rights Tribunal err in declining to exercise its discretion to dismiss Ms. Trozzi's application, pursuant to s. 45.1 of the Code?

[30] In our view it did, for two reasons. First, it failed to take into account HPARB's specialized expertise and public protection mandate. Second, though it purports to ask itself whether HPARB "appropriately" addressed Ms. Trozzi's claims, the Tribunal's reasons actually concern themselves with whether HPARB adequately addressed her claims, using the Human Rights Tribunal's yardstick of "accommodation to the point of undue hardship". The fallacy of the Tribunal's logic is illustrated by the prospect of the Human Rights Tribunal ultimately having to substitute its own view of public health protection concerns for that of HPARB, or making a decision which ignores such concerns, and is potentially harmful to patients.

[31] The RHPA has a comprehensive regime for addressing the incapacity of applicants for registration so as to accommodate disability in a manner consistent with the health and safety of the public. Section 1(1) of the Health Professions Procedural Code, a Schedule to the RHPA, defines incapacity in the context of whether an individual's condition or disorder "makes it desirable in the interest of the public that the member's Certificate of Registration be subject to terms, conditions or limitations".

[32] Registration Committees and HPARB are required to address human rights issues and allegations of Code violations, including claims of discrimination on the basis of disability or incapacity. See Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 [56 C.H.R.R. D/1] at § 14. HPARB did so. Had it failed to do so, Ms. Trozzi's claims obviously would not have been "appropriately" dealt with. Section 45.1 would not even come into play and the Human Rights Tribunal process could continue.

[33] However, when a tribunal such as HPARB specifically addresses the alleged discrimination within the context of its own "incapacity" mandate, those allegations have been "appropriately" dealt with. Any challenge is by appeal or judicial review of that decision. The Human Rights Tribunal is not an appellate body for other tribunals and it cannot supervise other tribunals which have exercised a public protection mandate based on their own expertise. The Human Rights Tribunal has no expertise in protecting public health. It should not assume jurisdiction in order to substitute its statutory mandate for the mandate of another tribunal having responsibility and expertise in that area.

[34] The Human Rights Tribunal does not have a monopoly on the consideration of claims of discrimination. On the other hand, the obligation of all statutory decision makers to take such claims into account does not oust the Human Rights Tribunal's jurisdiction. In this case the Tribunal began its discussion by noting that the Human Rights Tribunal's own jurisprudence provides for a two-part analysis of the s. 45.1 issue:

(i) Was there another proceeding? and

(ii) If so, did it appropriately deal with the substance of the application [allegations/ complaint]?

[35] In our view, when asking itself the second question the Human Rights Tribunal erred by failing to distinguish HPARB as a tribunal which not only applies its own expertise, but also has a public protection mandate. If a tribunal such as HPARB purports to consider Code complaints within a public protection mandate, determining the degree of accommodation that is appropriate in that context, the Human Rights Tribunal owes the highest deference to that other tribunal.

[36] There are other proceedings in which a statutory decision maker is not exercising a public protection mandate. In those instances the standard of "accommodation to the point of undue hardship", without regard to any competing public protection concern, may mean that the other statutory decision maker is to apply the same standard as the Human Rights Tribunal when it comes to discrimination. In those cases, the Human Rights Tribunal's own specialized expertise would not butt up against a different standard or statutory mandate, but that is not the case here.

Other Issues

[37] At § 54 of its decision, the Tribunal concluded that the Registration Committee's consideration of Ms. Trozzi's objections to the conditions attached to her licences do not constitute a "proceeding" within the meaning of s. 45.1. In doing so, the Tribunal baldly stated that the Registration Committee's proceedings "cannot be considered to be impartial or independent and as such are not proceedings within the meaning of s. 45.1". There is no evidence to support that finding. The Registration Committee's consideration of the matter is not a private internal process established by an employer without formal guarantees of procedural fairness, impartiality or independence. On the contrary, its decisions are those of a body created by statute which owes a duty of procedural fairness and is subject to both statutory appeal and judicial review if it fails to consider Code complaints. The Registration Committee's authority and mandate derives directly from the Regulated Health Professions Act, the Health Professions Procedural Code, and the Nursing Act, 1991. Section 3(2) of the Health Professions Procedural Code explicitly provides that the College has a duty to regulate the licensing of nurses and registered practical nurses in a manner which serves and protects the public interest. It fulfills that mandate through its Registration Committee. The appointment process for members of the Registration Committee ensures that they have the requisite knowledge and understanding of health related issues, by virtue of their education and training, so as to discharge the public protection mandate in the context of licensing RNs and RPNs. See ss. 4 and 10 of the Health Professions Procedural Code. Furthermore, ss. 15 to 22.14 and 70 of the HPPC provide a detailed procedure for the Registration Committee's decision making, which includes disclosure requirements, a right to a hearing which is "transparent, objective, impartial and fair" and which provides for a written decision, with reasons, together with the right to have the Registration Committee's decision reviewed by HPARB and a further right of appeal from the decision of HPARB to the Divisional Court. Superimposed on the statutory process is the opportunity for a licensed applicant to have the court conduct a judicial review of the Registration Committee's functions and decisions.

[38] It is quite clear the process leading to a decision by the Registration Committee is a "proceeding".

[39] The Human Rights Tribunal decided that it would hear allegations of disability-based discrimination which had previously been considered and rejected by two statutory decision makers: the Registration Committee of the College of Nurses of Ontario and the Health Professions' Appeal and Review Board. The Registration Committee had imposed certain conditions on Ms. Trozzi's registration certificates as a Registered Nurse and Registered Practical Nurse. Ostensively it did so in an attempt to accommodate her medical disability and enable her to practise her profession while adequately protecting the public. Ms. Trozzi alleged these conditions infringed her rights under the Code. HPARB carried out a review under the provisions of the Regulated Health Professions Act and affirmed the Registration Committee's decision. Subsequently based upon further evidence, the Registration Committee removed the conditions and Ms. Trozzi has been registered as a registered nurse unconditionally since 2007.

[40] When Ms. Trozzi sought to cancel twelve conditions attached to her Certificate of Registration on the basis that the Registration Committee had infringed her rights under the Code by imposing those conditions, she made extensive written submissions to HPARB on the statutory duty to accommodate disability related needs as published by the Ontario Human Rights Commission. In fact, her submissions put the entire OHRC Policy and Guidelines on Disability and the Duty to Accommodate before HPARB.

[41] Both the Registration Committee and HPARB were obliged to apply the Code. They both explicitly did so. Ms. Trozzi's application before the Human Rights Tribunal is clearly a collateral attack on the decisions of the Registration Committee and HPARB. The common law doctrine which prohibits a collateral attack on a decision by another tribunal acting within its jurisdiction can be displaced by a clear and specific statutory provision. However, in our view, s. 45.1 of the Code does not open the door to a collateral attack when that other tribunal is exercising a public protection mandate under the RHPA. If the decision being challenged is that of a statutory decision maker which does not have a mandate potentially at odds with that of the Human Rights Commission, we would not rule out the possibility of what would otherwise constitute a "collateral attack". Section 45.1 does reflect legislative recognition of the special expertise of the Human Rights Tribunal.

[42] However, the expertise of the Human Rights Tribunal becomes disengaged when "reasonable accommodation consistent with public protection in health care" replaces the Tribunal's standard of "reasonable accommodation up to the point of undue hardship".

[43] In this case, the Tribunal erred when parsing the reasons of HPARB. HPARB explicitly referenced its awareness of the obligation to consider relevant Code provisions in the context of its special mandate. If HPARB fails to adequately take a Code complaint into account there is recourse to the court, by means of appeal or judicial review. However, once reasons are given on the face of the HPARB decision, which clearly indicate that HPARB considered the issue and decided it, it is no longer up to the Human Rights Tribunal to pass judgment on the adequacy of HPARB's decision or its reasons. It cannot do so without substituting its own view of "reasonable accommodation" for that of HPARB.

[44] HPARB noted in its reasons:

The heart of equality is the duty to reasonably accommodate. The process of reasonable accommodation includes preventing and removing barriers that impede the disabled from participating fully in the professional environment in a way that is responsive to their unique circumstances...

HPARB considered the Code and the specific complaints of Ms. Trozzi and found that the conditions imposed by the Registration Committee of the College were within the College's proper mandate and demonstrated an awareness of the duty to accommodate. As such, HPARB "appropriately dealt with the substance of the application".

[45] We therefore quash the September 17, 2010, decision of the Human Rights Tribunal and dismiss the complaints of Esther Trozzi pending before that Tribunal. If counsel are unable to agree on costs, brief written submissions may be exchanged and filed within the next 30 days.

LEDERER J. (CONCURRING IN THE RESULT)

[46] I have reviewed the judgment of my colleagues. I agree with the result. However, I have travelled a somewhat different path to get there. My concern is restricted to one issue: the proper interpretation and application of s. 45.1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

[47] This is an important case. For this Court, it is a case of first impression. It will contribute to our understanding of how and where complaints made under the Code will be considered and determined (Trozzi v. College of Nurses of Ontario, 2010 HRTO 1892 [reported 72 C.H.R.R. D/18] at § 23 referencing Campbell v. Toronto District School Board, 2008 HRTO 62 [reported 65 C.H.R.R. D/211], Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14 [ 56 C.H.R.R. D/1]):

The Code is an important public policy statute protecting rights that are quasi-constitutional in nature. These rights are meaningless without access to a mechanism for their enforcement. The Tribunal provides the opportunity for persons to pursue their rights under the Code. The Tribunal provides leadership in the interpretation and application of the Code. At the same time, responsibility for the administration of justice and the enforcement of legal rights is spread across a range of courts and tribunals and these other adjudicative bodies have the responsibility and jurisdiction to apply the Code in the context of their own statutory mandates... [Emphasis added]

[48] At its base, this case concerns the interpretation of s. 45.1 of the Code. The section is quoted in the reasons of my colleagues. I repeat it for ease of reference:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. [Emphasis added]

[49] The question this Court has been asked to decide is whether, in considering the decision of the Health Professions Appeal and Review Board ("HPARB"), the Human Rights Tribunal has applied s. 45.1 in a way that properly identifies its own responsibilities and acknowledges the role of tribunals like HPARB. The responsibility of the Human Rights Tribunal is defined by the words of s. 45.1 of the Code. Did it consider whether HPARB had "appropriately dealt with the substance of the application"? I agree with the other members of this panel. It did not. Their decision indicates that, while the decision of the Human Rights Tribunal "purports to ask itself whether HPARB 'appropriately' addressed Ms. Trozzi's claims, the Tribunal's reasons actually concern themselves with whether HPARB adequately addressed her claims..." (see: Reasons of the Majority, at § 30). While I agree that the Human Rights Tribunal did not ask itself the right question, I come to the result differently.

[50] "Adequately" does not appear in the legislation or the decision of the Human Rights Tribunal. It is not clear to me what standard is indicated by the use of this word.

[51] The word "appropriate", which is found in s. 45.1 of the Code, means "suitable" or "proper". The Human Rights Tribunal is directed to come to an opinion as to whether the decision of HPARB, insofar as it dealt with the substance (that is the "essence", "nub" or "central part") of the application was suitable. In other words: Were the conditions attached to the licence of Esther Trozzi appropriate in accommodating a nurse whose job would require her to give care to those who were ill?

[52] The Human Rights Tribunal did not deal with this question. Rather, it considered whether HPARB had asked itself the right questions, whether the reasons of HPARB demonstrated a proper examination of the issues before it and where the onus properly lies in cases where the human rights complaint involves the accommodation of a person with a disability (see: Trozzi v. College of Nurses of Ontario, supra, at § 36, 38 and 39). The Human Rights Tribunal did not consider for itself, or come to its own opinion, as to whether the conditions were appropriate. Rather, it was critical of HPARB for not having done so in a fashion that the Human Rights Tribunal found acceptable (Trozzi v. College of Nurses of Ontario, supra, at § 42):

It is not clear that HPARB considered whether there were alternative conditions that could have been set for the complainant that were less discriminatory but might still meet the College's legitimate interest to ensure safe nursing practices. HPARB's baldly stated determination that the conditions were reasonable and within the College's proper mandate does not demonstrate that HPARB appropriately followed the legal analysis required by Meiorin, which states the fundamental principles of the duty to accommodate in human rights law.

[53] It is not for the Human Rights Tribunal to review the decision of HPARB to see if it undertook the examination of the issue that the Human Rights Tribunal believes was required. The role of the Human Rights Tribunal is, within the parameters to be discussed later in these reasons, to consider whether the conditions imposed "appropriately dealt with the substance of the application".

[54] It should be said that, contrary to the decision of the Human Rights Tribunal, the case of British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 1999 652 (SCC), [1999] 3 S.C.R. 3 [35 C.H.R.R. D/257] ("Meiorin") is not of much assistance. It pre-dates the passage and proclamation of s. 45.1 of the Code by several years and deals with the direct analysis of whether, in the circumstances, an employee could be accommodated in respect of a particular job.

[55] The Human Rights Tribunal understood that the decision of the HPARB was susceptible to an application for judicial review (see: Trozzi v. College of Nurses of Ontario, supra, at § 19, 56 and 61) and that it was not an appellate tribunal (see: Trozzi v. College of Nurses of Ontario, supra, at § 25 and 30). Nonetheless, the questions the Human Rights Tribunal asked itself are among those that would be appropriate for consideration, by a court, on an application for judicial review. They are not properly considered by the Human Rights Tribunal under s. 45.1 of the Code. It is not for the Human Rights Tribunal to deal with whether the HPARB asked itself the right questions or adopted a fair procedure. Where it does so, the Human Rights Tribunal usurps the role of the court.

[56] There is some confirmation for this in s. 45.8 of the Code. It says:

Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

[57] This is a "privative clause". Such clauses indicate the intention of the Legislature to restrict the court's review of the decisions of a tribunal. Under this clause, a decision of the Human Rights Tribunal must be "patently unreasonable" before it can be set aside. Although this is no longer a standard of general application, it applies here. The words are in the statute (see: Shaw v. Phipps, 2010 ONSC 3884 [reported 71 C.H.R.R. D/168] at § 34 and 35; and Audmax v. Ontario (Human Rights Tribunal), 2011 ONSC 315 [reported 72 C.H.R.R. D/36] at § 25—28). These words demonstrate that the tribunal to which they apply is to receive the highest deferential standard of review (see: Shaw v. Phipps, supra, at § 37—38; and Audmax, supra, at § 29). The standard was introduced to apply to tribunals with particular expertise, which have been given the protection of a privative clause, when acting within their own jurisdiction (see: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at § 35, referring to Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 23 (SCC), [1979] 2 S.C.R. 227). So far as I can see, nothing in the recent cases detracts from this proposition. The precise degree of deference the standard will attract will "continue to be calibrated according to the general principles of administrative law" (see: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at § 19). What follows from this is that even with the application of this standard, the Human Rights Tribunal cannot escape review when it enters areas beyond its expertise. The Human Rights Tribunal has no special expertise to determine if another tribunal has acted outside its jurisdiction. Any determination of the Human Rights Tribunal that considers whether another tribunal, in this case HPARB, has exceeded its jurisdiction is not protected by s. 45.8 of the Code. Section 45.1 of the Code does not authorize the Human Rights Tribunal to rest a decision on such a finding.

[58] To me, this should be the end of the matter. The Human Rights Tribunal has not asked itself the question put by s. 45.1 of the Code and, accordingly, has not fulfilled the responsibilities that the section provides. It has not dealt with whether the conditions attached to the licence of Esther Trozzi were appropriate in the circumstances.

[59] None of this deals with the nature of the inquiry that the Human Rights Tribunal should have carried out. What is required to determine whether HPARB appropriately dealt with the substance of the application? What seems self-evident is that the Human Rights Tribunal cannot carry out this analysis without regard for the responsibilities and expertise of the tribunal that is the author of the decision it is examining. HPARB has the responsibility and jurisdiction to apply the Code in the context of its own statutory mandate. The decision of the Human Rights Tribunal acknowledged this concern (Trozzi v. College of Nurses of Ontario, supra, at § 40):

HPARB identified the College's legitimate standard as the need to ensure safe nursing practices. In the present case undue hardship for the College would be to risk safe nursing practices when accommodating the complainant.

[60] The decision of the other members of the panel responds to this by identifying HPARB as a tribunal with a "public protection mandate", determining that the Human Rights Tribunal owes the "highest deference" to such tribunals and that the expertise of the Human Rights Tribunal becomes "disengaged" in the face of the expertise and responsibilities of HPARB (see: Decision of the Majority, at § 35 and 42). It is not clear to me how far the concept of a tribunal with a "public protection mandate" extends. What tribunals and interests does it apply to?

[61] While I agree that the Human Rights Tribunal must be cognizant of the expertise and responsibility of the other tribunal, I approach this issue differently.

[62] The legislation does not refer to, or identify, HPARB as a tribunal with a "public protection mandate". The Regulated Health Professions Act, 1991, S.O. 1991, c. 18 does recognize that the registration of nurses is to be undertaken in the "public interest". The "public interest" is a broader concept than a "public protection mandate". The Minister of Health is directed to "regulate" health professions in the public interest (Regulated Health Professions Act, 1991, supra, s. 3):

It is the duty of the Minister to ensure that the health professions are regulated and co-ordinated in the public interest, that appropriate standards of practice are developed and maintained and that individuals have access to services provided by the health professions of their choice and that they are treated with sensitivity and respect in their dealings with health professionals, the Colleges and the Board.

(See also: s. 36(1)(g), and Schedule 2: Health Professions Procedural Code, ss. 2.1, 3(2), 22.18(7) para. 1, 23(8), 23(11)(c)(i) and 32(3)(c).)

[63] This demonstrates that the public interest is a central concern in the registration of practitioners of regulated health professions. It is for this reason that the Human Rights Tribunal is required to treat the decision HPARB with great deference.

[64] In a sense, every regulatory tribunal is concerned with the "public interest", but the measure of that interest will depend on the subject-matter being dealt with. Health care has a direct effect on us all. It may be that the registration of motor vehicle dealers and real estate brokers, while important, does not raise the same level of public interest. A reading of the applicable legislation would suggest that this is so. Thus, it may be that the Licence Appeal Tribunal, which can be requested to conduct a hearing where it is proposed to refuse registration under these Acts, would not be given the same level of deference by the Human Rights Tribunal as HPARB. This is something to be decided on the facts of each case (see: Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sched. B, ss. 8(5), 10 and 21(2) and Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sched. C, ss. 14(5) and 15(1)).

[65] In determining whether the substance of the application has been dealt with appropriately, the Human Rights Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum, in this case HPARB (see: Campbell v. Toronto District School Board (No. 1), 2008 HRTO 62 [reported 65 C.H.R.R. D/211]). The Human Rights Tribunal does not sit as an appellate court in respect of these decisions. It is not the job of the Human Rights Tribunal to parse the reasons of the other tribunal to determine whether they meet the standard set for a specialized human rights body. Rather, the Human Rights Tribunal, in considering whether a decision of another tribunal appropriately dealt with the substance of the application, must acknowledge that such matters may step beyond a consideration of the human rights issues and into areas beyond its expertise.

[66] Any human rights concerns must be determined in the context of the statutory mandate of the other tribunal. In the case of HPARB, this is the need to ensure that a nurse, or a member of any other regulated health profession, is able to provide the care that is expected and that any conditions to a licence necessary to ensure this ability are put in place. In balancing the human rights concerns with the mandate of the other tribunal, the Human Rights Tribunal is required to account for the public interest in the issue, as expressed in the legislation (or elsewhere), and accord the decision it is considering whatever deference it deserves. As the decision of the other members of the panel suggest, there will be cases where the public interest is dominated by the human rights concerns. In such circumstances, little, if any, deference will be owed by the Human Rights Tribunal. Its expertise as a body specializing in human rights matters will be the governing concern. I do part company with my colleagues in one respect. I do not accept that the expertise of the Human Rights Tribunal is ever "disengaged" (see: Reasons of the Majority, at § 42). It is a question of determining the part that expertise will play in any particular decision. We are balancing social concerns. On the one hand, we are accounting for our desire to ensure that citizens will live their lives free of discrimination. On the other hand, we are concerned that members of the public can be confident that regulated health professionals will be able to provide the services expected of them.

[67] The role of the Human Rights Tribunal in determining whether and to what degree deference is owed is a difficult and sensitive one, but it is not dealt with by trying to be a court and examining whether the other tribunal, in this case HPARB, has acted within its own jurisdiction. In this case, the decision of the Human Rights Tribunal failed to appreciate the public interest context in which the registration of nurses takes place.

[68] In this case, the job of the Human Rights Tribunal was complicated by the decision taken by HPARB. To my mind, its reasons provided little guidance as to the rationale for the conditions attached to the registration of Esther Trozzi. The decision does refer to the requirements for registration. In particular, it quoted O. Reg. 275/94 made under the Nursing Act, 1991, S.O. 1991, c. 32:

5(1) The following are the registration requirements for a certificate of registration of any class other than a retired class:

4. The applicant must not suffer from a physical or mental condition or disorder that makes it desirable in the public interest that he or she not practise nursing.

[69] It refers to the relevant provisions of the Human Rights Code (s. 5(1), which prohibits discrimination on account of disability; s. 6, which provides for equal treatment by a self-regulating profession and s. 10, which defines "disability").

[70] The submissions, made on behalf of the College, were reviewed. HPARB noted that: "Ms. Trozzi has admitted to having medical limitations that, in the College's view, require the imposition of conditions on her registration". It also observed that: "There is a concern that Ms. Trozzi may not follow her treatment regime".

[71] The decision recognizes that the College has a duty to protect and to govern the profession of nursing in Ontario.

[72] From this foundation, it provides its rationale for upholding the conditions:

The Board accepts the College's opinion that Ms. Trozzi is qualified to safely practice nursing, subject to the conditions attached to her nursing license. The Board finds these conditions are reasonable within the proper mandate and responsibility of the College. The Board accepts that the College has discharged its duty to accommodate Ms. Trozzi on account of her disability.

[73] This does little to explain why the conditions were required and how they would ensure that Esther Trozzi was able to carry on as a registered nurse given the disability that had been identified.

[74] Whether this is sufficient is not for me to decide. I agree with my colleagues when they say: "... once reasons are given on the face of the HPARB decision, which clearly indicate that HPARB considered the issue and decided it, it is no longer up to the Human Rights Tribunal to pass judgment on the adequacy of HPARB's decision or its reasons..." (see: Reasons of the Majority, at § 43). This would be a matter for the Court on an application for judicial review.

[75] The Human Rights Tribunal is constrained by the provisions of s. 45.1 of the Code. Its hearing is a de novo proceeding. It can only determine if the conditions appropriately deal with the substance of the application. Were the conditions that were imposed appropriate in accommodating Esther Trozzi so that she could give the care expected of a registered nurse? The sufficiency of the reasons given by HPARB, and issues with the proceeding it conducted, are not for the Human Rights Tribunal to decide. Those questions belong in court.

[76] I end by returning to the observation made at the outset of these reasons — that this case will contribute to our understanding of how and where complaints made under the Code will be considered. The wording of s. 45.1 authorizes the Human Rights Tribunal to ensure that any accommodation provided for by a decision of another tribunal is appropriate, but not to deal with issues of the fairness, process or jurisdiction of the other tribunal. The expertise of the Human Rights Tribunal does not extend to such issues. The difficulty for parties or counsel will be to determine whether they should proceed to the Human Rights Tribunal under s. 45.1 of the Code or to court for judicial review.

[77] Like my colleagues, I would quash the September 17, 2010, decision of the Human Rights Tribunal and dismiss the complaints of Esther Trozzi pending before that Tribunal.

[78] I wish to express one further concern. In this case, the conditions to the registration of Esther Trozzi were removed by a decision of the Registration Committee of the College of Nurses of Ontario, made on July 6, 2007. Esther Trozzi has been free to function as a Registered Nurse, without restriction, since that time. It may be that intent is not necessary for a party to be guilty of discrimination. It may be that the pain of having been the victim of discrimination continues. Nonetheless, in this case, there does not appear to be any bad faith or malfeasance. It was at the invitation of the College that Esther Trozzi delivered the further medical evidence that led to the conditions being withdrawn. It is difficult to understand what was to be gained by pressing on with this complaint. If it is to chastise the College in a public way, or to put others on notice, surely whatever lessons are to be learned from this have been recognized by now. If it is to provide Esther Trozzi with the comfort that comes with an apology or compensation, there must be times when closure comes from ourselves? Society cannot compensate or publicly recognize every wrong, perceived or real.