Canada: Professional Regulators Must Address Human Rights Issues: Burden Or Blessing?

Seasoned professional regulators know that human rights issues arise from time to time in the regulatory context. Increasingly, however, the issues appear to be moving from the periphery to the centre of the regulatory sphere, requiring regulators who typically have more professional than legal experience to grapple with human rights laws. Recent cases finally provide some "good news" for professional regulators with respect to human rights issues.

The Alberta Human Rights Act, RSA2000, c. A-25.5, expressly prohibits "occupational associations" from discrimination on enumerated grounds, including race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation. Professional regulatory organizations are considered to be "occupational associations" for the purpose of human rights laws.

What this means is that a regulatory body cannot subject an individual to differential treatment based on a protected ground, even if the differential treatment arises indirectly, such as when a standard policy results in a disproportionate effect on an individual or group of individuals. In addition, a regulatory body is subject to the duty to accommodate. This means that once a member or prospective member establishes that he or she faces a barrier to full participation in membership because of a protected ground, the regulator is required to take steps to remove these barriers, up to the point of "undue hardship."

For example, human rights issues arise in the following contexts: foreign-trained professionals being denied registration and alleging discrimination based on place of origin1; professionals raising issues of addiction (considered a "disability" in human rights law) as an excuse or mitigating factor for unprofessional conduct2; professionals with physical or mental disabilities that might affect their ability to practice safely and effectively3; and applicants being denied registration due to criminal convictions4.

At one point in time, some regulators tried to choose an easy way out: they would shunt complex human rights issues over to the Human Rights Commission to decide the matter, on the basis that the Commission had superior expertise in the area. That avenue was closed in 2006, when the Supreme Court released the decision of Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14.

Tranchemontagne concerned two men who challenged a provision of the Ontario Disability Support Program Act, 1997 ("ODSPA"), which disqualified alcohol or drug addiction as disabilities and denied income support to people who claimed disability on those grounds. The appeal tribunal declined to consider the matter, holding that it did not have jurisdiction. This ruling was appealed to the Ontario Divisional Court, which held that while the appeal tribunal did have jurisdiction, it was right to decline jurisdiction on the basis that the human rights commission was the better forum.

The Supreme Court overruled the Court of Appeal in a decision with serious ramifications for tribunals across Canada. Firstly, it agreed with the Court of Appeal that tribunals had jurisdiction to apply human rights law. It explained that provincial human rights legislation is "fundamental law" that applies to all other provincial laws, and therefore tribunals have jurisdiction to apply human rights law absent express statutory direction to remove it.

More importantly, however, the Supreme Court held that tribunals have a responsibility to decide human rights issues when they impact on an issue within the tribunal's mandate. The Court framed this as an issue of accessibility. Atribunal's refusal to take into account a live human rights issue could result in an insurmountable burden for applicants who lacked the knowledge or resources to tackle dual proceedings before both a tribunal and the Human Rights Commission. The fact that this imposed a burden on regulators, some of whom were volunteers, and many of whom lacked expertise in human rights law, was a lesser concern.

While Tranchemontagne cleared up the question of whether an administrative body should consider human rights issues, it raised a new problem. If administrative bodies could no longer decline jurisdiction to decide a human rights issue, what happens if an applicant launched proceedings both with Human Rights Commission and before the administrative body? Would the applicant be given two kicks at the same can?

Recent case law established that the answer is a resounding no. As a result, regulators can be secure in the knowledge that after they have decided on the proper balance of individual human rights with protection of public safety, this won't be overturned by a human rights tribunal with less appreciation of the public protection mandate.

In British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, the Supreme Court considered a challenge by workers who were dissatisfied with the lesser WCB benefits they received under the Workers' Compensation Board's chronic pain policy. The workers had unsuccessfully argued before the Board's Review Division that the policy discriminated against them on the grounds of disability. Rather than applying for judicial review, however, the workers instead chose to initiate a complaint to the BC Human Rights Tribunal on the same human rights ground they'd argued earlier.

WCB sought dismissal of the human rights complaint under s. 27 of the BC Human Rights Code, which gave the BC HRT the discretion to decline jurisdictionon the basis that the workers' human rights complaint had been "appropriately dealt" with The AHRAcontains a similar provision at s. 22(1.1), permitting the Commission to decline jurisdiction where the matter has been "appropriately dealt" with. The BC HRT, however, decided to proceed with a full tribunal. The WCB sought judicial review of the BC HRT's decision to proceed, which was granted at the Court of Appeal and upheld by the Supreme Court.

The Supreme Court rejected the narrow interpretation the BC HRT applied to s. 27 of its Code. It held that s. 27 – and by analogy, s. 22(1.1) of the AHRA–embraced the wider common law principle of the "pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity and delay."As a result, it found that litigants unhappy with a tribunal ruling could not try for a second kick at the can by relitigating before a human rights tribunal. Instead, the first administrative body to properly exercise jurisdiction over the matter would remain the definitive body to do so – subject only to the usual channels of appeal and judicial review.

The importance of the Figliola principle for professional regulators was illustrated in the case of College of Nurses v. Trozzi, 2011 ONSC 4614, an appeal to the Ontario Divisional Court sitting as an appeal court of a decision by the Health Professions Appeal and Review Board (HPARB). HPARB isthe appeal body for health professions under the Ontario Regulated Health Professions Act.

In Trozzi, a nurse suffering depression and fibroymyalgia that affected her levels of concentration sought to be registered as an RNand RPN. The Registration Committee accepted registration, but decided to attach conditions to Trozzi's registration certificates to minimize the risk to the public. Trozzi appealed to HPARB, arguing that she was being discriminated against on the basis of physical and mental disability. After Trozzi submitted written argument and particulars to HPARB, but before HPARB issued a decision, she filed a claim with the Ontario Human Rights Commission on the same grounds.

In November 2006, HPARB dismissed Trozzi's application for review of the Registration Committee's decision, finding that the College had discharged its duty to accommodate. Trozzi did not appeal. During this time, the Commission elected to refer the human rights complaint to the Human Rights Tribunal. The College sought dismissal of the complaint, arguing that HPARB "appropriately dealt" with the issue. This was rejected by the HRT on the basis that the College had not applied the right test for whether the College had met its duty to accommodate to the point of undue hardship. The College appealed.

The Ontario Divisional Court overturned the HRT decision. In its reasons, it provided guidance for when a human rights issue has been dealt with "appropriately," such that the HRT should exercise its discretion to decline jurisdiction. It explained that "appropriately" is not a question of whether another tribunal has applied the proper legal tests – which would be an issue for appeal or judicial review --but rather whether the issue had been decided by another tribunal with the authority to do so. If HPARB had declined jurisdiction that it was obligated to take as per Tranchemontagne, the issue would not have been "appropriately dealt" with. As HPARB had properly taken jurisdiction, however, the matter was finished as far as the HRT was concerned.

As the Court stated at para. 33,

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.

What is key for professional regulators is Trozzi's recognition that a regulator's public protection mandate cannot be trumped by the HRT's mandate to protect human rights. As the Court stated at para. 35:

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.

In our opinion, Figliola and Trozzi transform the Tranchemontagne ruling from purely a burden on regulators, to an opportunity to better fulfill their public protection mandate.

In the past, regulators who carefully balanced the need to enforce professional standards for public protection with individual human rights faced the risk of being overturned by a human rights tribunal less alive to the public interest at play.

Now, however, professional regulators who embrace their human rights jurisdiction can ensure that the issue is decided, and remains, in its proper context.

That is the "good news" for professional regulators.


Appeal Of Penalty Decision

Mclean V. Law Society (Saskatchewan), 2012 Skca 7

A lawyer was charged with five counts of conduct unbecoming, including failing to comply with a trust condition, breaching an undertaking, and failing to act in a conscientious and diligent manner when representing several clients. The lawyer pled guilty to all of the allegations, and the hearing proceeded by way of an Agreed Statement of Facts (ASF). After hearing submissions from the parties on penalty, the Discipline Committee imposed a four-month suspension. The Discipline Committee, in its reasons, noted that the conduct would not normally attract such a lengthy suspension. However, the Discipline Committee felt that a four-month suspension was warranted for reasons including: there was a previous finding of conduct unbecoming,the lawyer had "deliberately" engaged in some of the conduct, and the Committee felt that the lawyer had poor insight into his behavior.

The Court of Appeal quashed the suspension of four months, and imposed a lesser suspension of twenty-five days. The Court held that the Discipline Committee's decision was unreasonable since it failed to consider the lawyer's explanation for his conduct, and erred in finding that the lawyer did not understand the seriousness of his conduct and was not remorseful. The Court held that the lawyer's guilty plea, together with some of the documentation appended to the ASF, were contrary to the Committee's findings. In addition, the length of the suspension imposed was significantly longer than in previous cases.

Commentary: If a member pleads guilty to allegations of misconduct, then provides an explanation for the misconduct when making submissions on penalty, it does not necessarily mean that the member lacks insight or is not remorseful. Amember may think, at the time the conduct occurred, that he was acting appropriately. Where a member subsequently pleads guilty, it may not be appropriate for a tribunal to increase the penalty based on the lack of insight that gave rise to the misconduct in the first place.

Application for Disclosure

Talarico v. Law Society of Upper Canada, 2012 CarswellOnt 4982

The Law Society charged a lawyer with professional misconduct with respect to a client's fraudulent mortgage transactions. Prior to the hearing, the lawyer made a preliminary application to the Hearing Panel for disclosure of additional documents. The Hearing Panel denied the application. The lawyer then sought an adjournment of the hearing, which the Hearing Panel also denied. The lawyer then brought a court application to stay the discipline hearing until he received additional disclosure.

The Court denied the application for a stay, noting that courts will not typically intervene with interlocutory orders issued by a tribunal, since it encourages "fragmentation" of the proceedings. The circumstances here did not warrant court intervention. The court held it was appropriate for the hearing to proceed without the disclosure sought, but that the member could raise issues about the lack of disclosure after the hearing on appeal.

Commentary: Courts are reluctant to grant interlocutory applications involving preliminary decisions made by a hearing tribunal. If a member makes a court application prior to the conclusion of the hearing, the application will in most cases be denied on the basis that it is premature.


1 For example, see Bitonti v. College of Physicians & Surgeons of British Columbia, [1999] BCHRTDNo. 60; Veale v. Law Society of Alberta, [2001] A.J. 1535; Agduma-Silonganv. University of British Columbia, [2003] B.C.H.D.T.D. No. 22; and White v. National Committee on Accreditation, [2010] O.H.R.T.D. No. 1897.

2 For examples, seeFossum v. Society of Notaries Public of British Columbia, 2011 BCHRT 310 andGichuru v. The Law Society of British Columbia, 2009 BCHRT 360.

3 For example, see Duvall v. College of Dental Surgeons of B.C., 2011 BCHRT 236.

4 For example, see Mans v. BC Council of Licenced Practical Nurses (1990), 14 C.H.R.R. D/221 (BCCHR), upheld in BC Council of Licensed Practical Nurses v. Mans (1993), 20 CHRR D/177 (BCCA). This is less of a concern in Alberta since, unlike other jurisdictions, criminal history is not listed as an enumerated ground under our human rights legislation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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