October 19, 2011

The Human Rights Tribunal’s jurisdiction over regulator decisions, despite a right of review or appeal

Administrative Law
Health Professions Review Board
Human Rights
Inquiry and Investigations
Professional Regulation

This blog has already discussed some human rights considerations a regulatory body should have in mind when developing and applying policy and procedures for registration or membership. This entry deals with human rights considerations at a later stage, namely once a decision has been rendered.

In British Columbia, the Human Rights Tribunal has jurisdiction over certain kinds of discrimination, including discrimination by another tribunal, even if such discrimination may also be addressed by another forum. Although a statutory review or appeal body may have exclusive jurisdiction under its enabling statute, the Human Rights Code provides the Code will prevail in the event of any conflict between the Code and another enactment (s.4). Moreover, even if a complainant has a right of appeal to a court, the court only has jurisdiction over individual complaints, and cannot in an individual case deal with systemic issues of discrimination: Brar v. British Columbia Veterinary Medical Association, 2007 BCHRT 363 at para. 43 onward. Given this clear jurisdiction, the Code provides that the Human Rights Tribunal may defer a complaint when another proceeding is capable of appropriately dealing with the substance of a complaint (s. 25), and it may dismiss all or part of a complaint if the substance of the complaint or that part has been “appropriately dealt with in another proceeding” (s. 27(1)(f)).

Thus even where an appeal or review body has gone on to address alleged discrimination by a regulatory body, this does not necessarily oust the jurisdiction of the Human Rights Tribunal to address discrimination. The Human Rights Tribunal may still decide if the appeal or review body has “appropriately” dealt with a discrimination issue.

The continuing jurisdiction of human rights tribunals generally was recently illustrated by a decision of the Human Rights Tribunal of Ontario in Trozzi v. College of Nurses of Ontario, 2010 HRTO 1892 to retain jurisdiction over a complaint despite a human rights violation being dismissed by the Ontario Health Profession Appeal and Review Board (“HPARB”).

The Trozzi decision: Trozzi was an Interim Decision of the Human Rights Tribunal of Ontario (the “Tribunal”) in which the College of Nurses of Ontario (the “College”) was unsuccessful in having a complaint against it dismissed, based on HPARB having already adjudicated the substance of the matter at issue. The complainant in Trozzi, a registrant of the College, alleged the College discriminated against her on the basis of her disability by setting unnecessary conditions on her Registered Nurse (“RN”) and Registered Practical Nurse (“RPN”) certificates of registration, and by including on these certificates the notation “Monitoring by Registration Committee (Conditions)”.

The College became aware the complainant suffered from clinical depression and fibromyalgia when she requested accommodation during her RN examinations on the basis of these medical conditions (¶11). The Executive Director and Registrar of the College referred the complainant’s application to become an RN to the Registration Committee on the basis of her disclosed medical conditions, with the Registration Committee consequently imposing the impugned conditions (¶11). The complainant managed to convince the Registration Committee to remove one initial condition from her certificate, which would have required her to disclose her medical disabilities to prospective employers and, if hired, would have required her employers to report to the College any problems with her performance as a result of these disabilities (¶14). As the Registration Committee refused to remove the remaining conditions, she sought to have them reviewed by HPARB.

HPARB found the placing of the conditions was within the proper mandate and responsibility of the College and the College had “discharged its duty to accommodate Ms. Trozzi on account of her disability” (¶19). Furthermore, HPARB stated the notation on the complainant’s certificates indicating that conditions existed was not discriminatory as it was notation “not of her disability but of the existence of conditions” (¶19).

The complainant did not seek a judicial review of HPARB’s decision in this matter. Upon providing further medical information to the College, the complainant successfully obtained certificates of registration as both an RN and an RPN free of conditions (¶19-22). Still, the complainant proceeded with a human rights complaint against the College.

Respecting the alleged discrimination, the complainant expressed concern that prospective employers would unfairly assume the conditional status of her licenses was related to professional misconduct, and if clarified as being disability-related, prospective employers would believe her disabilities posed a serious risk of poor job performance (¶15). She had previously stated disclosure of the conditions on her certificates had lead her to lose her position with an agency that subsequently informed her they would not send nurses with conditions on their licenses to certain hospitals as these hospitals refused to consider such nurses (¶18).

The College took the position that the complaint was an abuse of process, characterizing it as an attempt by the complainant to re-litigate previous decisions by the Registration Committee of the College, and by HPARB on review. It requested that the complaint be dismissed pursuant to section 45.1 of the Human Rights Code of Ontario, R.S.O., c. H-19 (the “Code”) (¶5):

Dismissal in accordance with rules

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.

The College also argued the complaint was barred based on the adjudicative and statutory immunity of the College’s Registration Committee, as well as the principle of deliberative secrecy and the prohibition on collateral attack on statutory decisions (¶6).

The complainant and the Ontario Human Rights Commission opposed the College’s request to have the complaint dismissed, arguing that the complaint should be heard on its merits as the substance of the complaint had not been appropriately considered by HPARB (¶7).

Ultimately, the Tribunal found in favour of the complainant and ruled that the complaint should be heard on its merits. This decision does not address the substance of the discrimination complaint. It rules only on the Tribunal’s jurisdiction to proceed to hear the complaint on its merits, despite the substance of the complaint being allegedly dealt with by HPARB during the complainant’s appeal of the College imposing conditions on her RN certificate. It confirms, however, the Tribunal’s jurisdiction, and illustrates in instance of an appeal and review body not appropriately dealing with a human rights issue.

Jurisdiction: The Tribunal made note of the quasi-constitutional nature of human rights legislation in its decision, as well as the fact that various adjudicative bodies such as HPARB have the responsibility and jurisdiction to apply the Code in the context of their own statutory mandates (¶23).

Decisions by other tribunals: The Tribunal cited the doctrine of abuse of process as one requiring finality in litigation, and avoiding duplication in the adjudication of cases raising substantially the same issues in more than one forum, including alleged violations of the Code (¶24). This doctrine, however, is posed against a concurrent need to ensure that rights under the Code are protected (¶25). The Tribunal cites a previous decision, Campbell v. Toronto District School Board, 2008 HRTO 62, for the factors to be considered in determining whether a complaint should be dismissed pursuant to section 45.1 of the Code, cited above (¶27):

1)      Was there another proceeding?

2)      If so, did it appropriately deal with the substance of the application?

In applying this test, the Tribunal found no controversy over whether or not HPARB’s review of the complainants license conditions constituted a ‘proceeding’ for this purpose (¶28). Likewise, the Tribunal was satisfied that HPARB had clearly adjudicated on the substance of the complaint before it, namely whether the conditions of the applicant’s RN certificate of registration were discriminatory and whether the College had met its duty to accommodate the complainant (¶29). The Tribunal turned its focus primarily to the issue of whether HPARB had dealt with the substance of the complaint “appropriately” (¶30).

Inadequate human rights analysis by HPARB: The Tribunal found HPARB’s decision did not appropriately deal with the substance of the complaint, due primarily to HPARB’s “misapprehension of the relevant human rights principles” (¶38). The Tribunal found HPARB failed to assess whether the specific conditions set by the College on the complainant’s registration were reasonably necessary to ensure safe nursing practices, or the College could have accommodated the applicant in alternative ways without causing undue hardship (¶38). Much of the initial decision rests on the Tribunal’s dissatisfaction with HPARB’s failure to demonstrate it applied relevant human rights principles on the duty to accommodate as set out in the Supreme Court of Canada decision of British Columbia (Public Services Employee Relations Commission v. BCGSEU, [1999] 3 S.C.R. 3 (¶¶39-47).

The Tribunal also took issue with HPARB’s treatment of the complainant’s allegation that the notations on the conditional certificates violated the Code, as HPARB dismissed the allegation as failing to make out any direct discrimination, but failed to address this allegation as one of adverse impact discrimination (¶48).

The Tribunal found that since HPARB failed to properly address the human rights issues of adverse impact and undue hardship, it could not be said to have appropriately dealt with the substance of the complaint. On this basis, the Tribunal refused to exercise its discretion to dismiss the complaint pursuant to section 45.1 of the Code.

The Tribunal also dismissed the College’s arguments that the complainant’s failure to pursue a judicial review of the HPARB decision and the fact that she no longer had conditions on her licenses were relevant to whether or not the complaint was an abuse of process, finding that the need for the complainant to have her complaint appropriately considered under the Code outweighed other policy considerations (¶61).

The Tribunal went on to reject the College’s arguments that the Registration Committee’s decision was protected by a statutory immunity provision, deliberative secrecy, or the rule against collateral attack. It found that the Code is paramount over statutory immunity provisions, that deliberative secrecy was irrelevant when the complainant only sought to rely on documents that were already disclosed, and that the rule of collateral attack was restricted to situations where a decision was sought to be overturned as opposed to having its facts re-litigated (¶¶64-66). Likewise, the Tribunal rejected the College’s argument of adjudicative immunity on the basis the Registration Committee does not perform the functions of an impartial, independent adjudicator, and therefore the principle of adjudicative immunity was not applicable (¶67).

Trozzi under review: This decision of the Human Rights Tribunal of Ontario was subsequently been appealed to the Ontario Superior Court of Justice for judicial review. In September of this year, the court rejected HPARB’s application for intervenor status: College of Nurses of Ontario v. Trozzi, 2011 ONSC 3659. The court found HPARB’s application to intervene went beyond the appropriate role for a quasi-judicial tribunal by defending its own decision in this matter and attacking the soundness of the Tribunal’s ruling (¶13). The court noted the importance of the need to maintain tribunal impartiality and future confidence in its objectivity (¶10). Furthermore, the court found tthe College and another intervenor, the Federation of Regulatory Health Colleges of Ontario, were adequately qualified to bring any relevant evidence that HPARB might have contributed (¶8).

Trozzi v. College of Nurses of Ontario, 2010 HRTO 1892

Lisa Fong and Benjamin Ralston