In a recently released decision, Dindial v. College of
Nurses1, the Human Rights Tribunal of Ontario
("HRTO") dismissed an application by a registered nurse
alleging that she was discriminated against by the College of
Nurses ("CNO") on the grounds of race, colour, ethnic
origin, and disability.
The allegations arose from the CNO carrying out its duties under
the Regulated Health Professions Act, 1991, S.O. 1991,
c.18 ("RHPA"). The HRTO found that the
applicant's allegations were based almost exclusively on
evidence that was inadmissible before the HRTO pursuant to s. 36(3)
of the RHPA and, on that basis, the application had no
reasonable prospect of success.
As a result of this decision, it will be rare that a
professional self-regulatory college's handling of a regulatory
decision can be challenged before the HRTO or any other
The applicant self-reported to the CNO several criminal
convictions and provided background information relevant to those
convictions. The CNO's Inquiries, Complaints and Reports
Committee ("ICRC") conducted an inquiry, suspended the
applicant's license on an interim basis, and referred the
matter to the Fitness to Practise Committee ("FTPC") for
a hearing. The applicant lost wages and, she alleged, training
opportunities over the period of suspension and prior to the
The applicant alleged that she was harassed and discriminated
against by the CNO. She claimed that during the ICRC and FTPC
proceedings, the CNO failed to consider the background information
surrounding her convictions and her response to them, and used the
suspension of her license to pressure her to acquiesce to its
THE RHPA's "BLANKET PROVISION"
Section 36(3) of the RHPA states:
No record of a proceeding under this Act, a health profession
Act or the Drug and Pharmacies Regulation Act, no report,
document or thing prepared for or statement given at such a
proceeding and no order or decision made in such a proceeding is
admissible in a civil proceeding other than a proceeding under this
Act, a health profession Act or the Drug and Pharmacies
Regulation Act or a proceeding relating to an order under
section 11.1 or 11.2 of the Ontario Drug Benefit Act.
In its decision, the HRTO relied on court cases that found s.
36(3) to be "a blanket prohibition against the admissibility
of all evidence collected during the course of a health
profession's college's investigation and that this
prohibition is an absolute one."2 As well, the HRTO
recognized its own jurisprudence, which has "effectively
prevented issues arising from [RHPA proceedings and
decisions] ... from being adjudicated before the
On the basis of s. 36(3) and the jurisprudence interpreting and
applying it, the HRTO held that the information and documents
pertaining to the ICRC and FTPC proceedings were inadmissible.
Given that the applicant relied almost exclusively on this
evidence, the HRTO agreed with the CNO that there was no reasonable
prospect of success and dismissed the application in its
Going forward, health regulatory colleges whose mandates arise
from the RHPA can confidently rely on s. 36(3) and
Dindial v. College of Nurses when responding to human
rights complaints relating to the work of staff and Council members
in carrying out the work of the college's statutory committees.
This decision may also be of assistance to other regulatory
colleges that have a similar provision in their governing
1 Dindial v. College of Nurses of Ontario, 2016
HRTO 1170 [Dindial].
2 Dindial para. 21.
3 Dindial at para. 22.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).