College of Nurses (Ont.) v. Trozzi et al., 2011 ONSC 4614

• Judge: Jennings, Aston and Lederer, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 24, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONSC 4614;(2011), 286 O.A.C. 92 (DC)

College of Nurses v. Trozzi (2011), 286 O.A.C. 92 (DC)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. NO.020

College of Nurses of Ontario (applicant) v. Esther Trozzi, The Ontario Human Rights Commission and The Human Rights Tribunal of Ontario (respondents) and Federation of Regulatory Health Colleges of Ontario (intervenor)

(511/10; 2011 ONSC 4614)

Indexed As: College of Nurses (Ont.) v. Trozzi et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Jennings, Aston and Lederer, JJ.

October 20, 2011.

Summary:

Trozzi's complaint alleging discrimination on the basis of disability, contrary to s. 6 of the Ontario Human Rights Code, was pending before the Ontario Human Rights Tribunal. The College of Nurses of Ontario requested that the Tribunal dismiss Trozzi's complaint pursuant to s. 45.1 of the Code on the basis that the Health Professions Appeal and Review Board had already addressed all of Trozzi's allegations in an appropriate and adequate manner. The Tribunal rejected the College's request to dismiss Trozzi's complaint. The College applied for judicial review of that decision.

The Ontario Divisional Court allowed the application. The court quashed the Tribunal's decision and dismissed Trozzi's complaints pending before the Tribunal.

Administrative Law - Topic 574

The hearing and decision - Decisions of the tribunal - Collateral attack - [See second Civil Rights - Topic 7069 ].

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - Section 45.1 of the Ontario Human Rights Code provided that "The Tribunal may dismiss an application ... if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application" - The College of Nurses of Ontario requested that the Ontario Human Rights Tribunal dismiss Trozzi's complaint before the Tribunal under s. 45.1 on the basis that the Health Professions Appeal and Review Board had already addressed Trozzi's allegations in an appropriate and adequate manner - The Tribunal rejected the request - The College applied for judicial review - The Ontario Divisional Court stated that "The Human Rights Tribunal's decision in this matter constituted a determination of the jurisdictional boundaries between competing specialized tribunals. ... 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. Furthermore, the Human Rights Tribunal was required to interpret the Registered Health Professions Act 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" - See paragraphs 23 to 27.

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - [See Administrative Law - Topic 3220 ].

Administrative Law - Topic 3220

Judicial review - General - Interim applications or rulings - Section 45.1 of the Ontario Human Rights Code provided that "The Tribunal may dismiss an application ... if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application" - The College of Nurses of Ontario requested that the Ontario Human Rights Tribunal dismiss Trozzi's complaint before the Tribunal under s. 45.1 on the basis that the Health Professions Appeal and Review Board had already addressed Trozzi's allegations in an appropriate and adequate manner - The Tribunal rejected the request - The College applied for judicial review - The Ontario Divisional Court declined to quash the application as premature - The court stated 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. ... 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 paragraphs 17 to 22.

Civil Rights - Topic 7069

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - General - Trozzi had been diagnosed with depression and fibromyalgia - The Registration Committee of the College of Nurses of Ontario imposed conditions on Trozzi's Registered Nurse and Registered Practical Nurse registrations, mainly related to her future medical treatment, and including a provision that she inform prospective employers that her registration was subject to the conditions - Trozzi appealed the Registration Committee's decision to the Health Professions Appeal and Review Board (HPARB), asserting that her right to be free from discrimination under the Ontario Human Rights Code was violated - Trozzi also filed a complaint with the Ontario Human Rights Commission, alleging discrimination on the basis of disability contrary to s. 6 of the Code - HPARB dismissed Trozzi's requested review of the Registration Committee's decision - The College sought to have Trozzi's complaint pending before the Ontario Human Rights Tribunal dismissed under s. 45.1 of the Human Rights Code - That section provided that "The Tribunal may dismiss an application ... if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application" - The Tribunal declined to dismiss Trozzi's complaint - The College applied for judicial review - The Ontario Divisional Court allowed the application and dismissed Trozzi's complaints pending before the Tribunal - The Tribunal erred in two ways - First, it failed to take into account HPARB's specialized expertise and public protection mandate - Second, though it purported to ask itself whether HPARB "appropriately" addressed Trozzi's claims, the Tribunal's reasons actually concerned themselves with whether HPARB adequately addressed her claims, using the Tribunal's yardstick of "accommodation to the point of undue hardship" - When a tribunal such as HPARB specifically addressed alleged discrimination within the context of its own "incapacity" mandate, those allegations had been "appropriately" dealt with - Any challenge was by appeal or judicial review of that decision - See paragraphs 28 to 36.

Civil Rights - Topic 7069

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - General - Trozzi had been diagnosed with depression and fibromyalgia - The Registration Committee of the College of Nurses of Ontario imposed conditions on Trozzi's Registered Nurse and Registered Practical Nurse registrations, mainly related to her future medical treatment, and including a provision that she inform prospective employers that her registration was subject to the conditions - Trozzi appealed the Registration Committee's decision to the Health Professions Appeal and Review Board (HPARB), asserting that her right to be free from discrimination under the Ontario Human Rights Code was violated - Trozzi also filed a complaint with the Ontario Human Rights Commission, alleging discrimination on the basis of disability contrary to s. 6 of the Code - HPARB dismissed Trozzi's requested review of the Registration Committee's decision - The College sought to have Trozzi's complaint pending before the Ontario Human Rights Tribunal dismissed under s. 45.1 of the Human Rights Code - That section provided that "The Tribunal may dismiss an application ... if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application" - The Tribunal declined to dismiss Trozzi's complaint - The College applied for judicial review - The Ontario Divisional Court allowed the application - The court stated, inter alia, that "the Tribunal concluded that the Registration Committee's consideration of Ms. Trozzi's objections to the conditions attached to her licenses 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 process leading to a decision by the Registration Committee was a "proceeding" - The court further stated that "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 [Regulated Health Professions Act]" - See paragraphs 37 to 45.

Civil Rights - Topic 7070.1

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Bars - [See both Civil Rights - Topic 7069 ].

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - [See first Administrative Law - Topic 3210 and Administrative Law - Topic 3220 ].

Practice - Topic 6270

Judgments and orders - Administrative orders - Collateral attack - [See second Civil Rights - Topic 7069 ].

Cases Noticed:

Ontario College of Art et al. v. Human Rights Commission (Ont.) (1993), 63 O.A.C. 393; 11 O.R.(3d) 798 (Div. Ct.), refd to. [para. 20].

Ackerman v. Ontario Provincial Police Service et al. (2010), 259 O.A.C. 163 (Div. Ct.), refd to. [para. 21].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [paras. 23, 57].

Tranchemontagne v. Disability Support Program (Ont.) et al., [2006] 1 S.C.R. 513; 347 N.R. 144; 210 O.A.C. 267; 2006 SCC 14, refd to. [paras. 32, 47].

Trozzi v. College of Nurses (Ont.), 2010 HRTO 1892, refd to. [para. 47].

Campbell v. Toronto District School Board, 2008 HRTO 62, refd to. [paras. 47, 65].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 54].

Shaw et al. v. Phipps et al. (2010), 271 O.A.C. 305; 2010 ONSC 3884 (Div. Ct.), refd to. [para. 57].

Audmax Inc. et al. v. Human Rights Tribunal (Ont.) et al. (2011), 273 O.A.C. 345; 2011 ONSC 315 (Div. Ct.), refd to. [para. 57].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 57].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 57].

Statutes Noticed:

Human Rights Code, R.S.O. 1990, c. H-19, sect. 45.1 [para. 2].

Counsel:

Raj Anand and Mark Edelstein, for the applicant;

Cathy Pike, for the respondent, The 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 intervenor.

This application was heard on June 24, 2011, before Jennings, Aston and Lederer, JJ., of the Ontario Divisional Court. The judgment of the Divisional Court was released on October 20, 2011, including the following opinions:

Aston and Jennings, JJ. - see paragraphs 1 to 45;

Lederer, J. (concurring in the result) - see paragraphs 46 to 78.