BC Human Rights Tribunal

M.S. v. Provincial Health Services Authority operating as BC Children’s Hospital, 2024 BCHRT 256

Date Issued: September 6, 2024
File: CS-005400

Indexed as: M.S. v. Provincial Health Services Authority operating as BC Children’s Hospital, 2024 BCHRT 256

IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal

BETWEEN:

M.S.
COMPLAINANT

AND:

Provincial Health Services Authority operating as BC Children’s Hospital
RESPONDENTS

REASONS FOR DECISION

APPLICATION TO LIMIT PUBLICATION
Rule 5
APPLICATION TO DISCLOSE DOCUMENTS
Rule 23
APPLICATION TO ADD RESPONDENTS
Rule 25(2)

Tribunal Member: Kylie Buday

On his own behalf: M.S.

Counsel for the Respondent: Devon Peck and Alon Mizrahi

Counsel for the Proposed Respondents: Nina Dauvergne

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I INTRODUCTION

[1] On October 25, 2021, M.S. filed a complaint against the Provincial Health Services Authority operating as BC Children’s Hospital [the Hospital]. In the complaint, M.S. alleges several individuals, who were part of a team overseeing his son’s medical care at the Hospital [Medical Team], formed discriminatory opinions about him and his family based on their place of origin, Iran. He further alleges members of the Medical Team, including four physicians [the Proposed Respondents], documented those discriminatory opinions in his son’s medical records and/or transferred those opinions to others, including the Ministry of Children and Family Development. M.S. says individuals on the Medical Team misdiagnosed and/or failed to provide his son with adequate medical care because of the discriminatory opinions they held and documented on his son’s medical record. M.S. further alleges the actions of the Medical Team, with whom he met more than 100 times, adversely impacted his ability to protect his family, stop the “unfair” behaviour and, by implication, care for and advocate on behalf of his son while he was a patient at the Hospital. M.S. says the actions of the Medical Team constitute discrimination in services based on his place of origin and his family status, contrary to s. 8 of the Human Rights Code [Code].

[2] The Hospital denies discriminating against M.S. It says it was not in a service relationship with M.S. and, therefore, did not violate s. 8 of the Code in any of its interactions with M.S. If there was a service relationship, the Hospital says that the care it provided to M.S.’s son, and any interactions between M.S. and any employees of the Hospital on his Medical Team, do not amount to discrimination. The Hospital further argues that to the extent that M.S. alleges the Proposed Respondents engaged in discriminatory conduct at the Hospital, it cannot be held liable for their acts or omissions under the Code.

[3] On March 7, 2024, after seeking and obtaining further particulars from M.S. regarding his allegations, including the identities of physicians and others on the Medical Team alleged to have been involved in the discrimination, the Hospital applied for an order to add the Proposed Respondents as parties to the complaint. M.S. consents to the application. The Proposed Respondents oppose the application. They say the Tribunal should not interfere with M.S.’s decision on how to frame his case. The Proposed Respondents also argue the allegations against them in the complaint, if proven, do not violate the Code and as such the complaint against them is bound to fail. The Proposed Respondents further argue that the complaint against them has no reasonable prospect of success and so it is not in the public interest to add them as respondents. The Proposed Respondents also ask the Tribunal to anonymize their names if it decides to add them as respondents to the complaint.

[4] For the following reasons, I allow the Hospital’s application in part and add Dr. Kalwinder Saran, Dr. Ziad Sharar, and Dr. Fawad Elahi to the complaint. I find M.S. has alleged facts against these three Proposed Respondents that if proven, could establish a contravention of the Code. I am also satisfied that adding them to the complaint is in the public interest, will not cause substantial prejudice to any person, and will further the just and timely resolution of the complaint. However, I am not persuaded the complaint alleges an arguable contravention against Dr. Anna Kalenchuk and deny the application to add her to the complaint.

[5] I deny the Proposed Respondents’ request for anonymization. I also deny the Proposed Respondents’ application for access to M.S. son’s medical records for the purpose of responding to this application only.

II BACKGROUND

[6] I take the following background information from M.S.’s complaint form, two sets of particulars, and the Hospital’s submissions. I provide this background to put this decision in context only. This is not a decision on the merits of the complaint, and I make no findings of fact.

[7] M.S. came to Canada with his wife and two sons in August 2018. They arrived as refugees from Iran and are now Canadian Citizens. When he and his family arrived in Canada, M.S. and his wife had no concerns about their eldest son’s mental or physical health. In around September 2019, when M.S.’s son started grade 2, things changed.

[8] In his complaint, M.S. says that he took his son to the Hospital on October 12, 2019, reporting significant changes to his son’s behaviour over the previous six weeks. M.S. says mental health practitioners at the Hospital examined his son and consulted with Neurology. M.S.’s son was admitted to the Hospital for further assessment and monitoring from October 13 to 18, 2019.

[9] On around October 17, 2019, one of the Proposed Respondents, Dr. Saran, examined M.S.’s son. As I understand it, Dr. Saran was the “consult liaison service psychiatrist” at the Hospital. In his complaint, M.S. alleges Dr. Saran visited his son and “labelled him” with Autism. M.S. also states Dr. Saran said his son’s symptoms were “longstanding symptoms such as poor social function, poor social connections & unusual repetitive movements.” M.S. disputes his son’s symptoms were longstanding and alleges Dr. Saran misdiagnosed his son. Hereafter, I refer to the Autism “label” and Dr. Saran’s opinion that symptoms were “longstanding” as the alleged “Misdiagnosis.”

[10] On October 18, 2019, one of the Proposed Respondents, neurologist Dr. Ziad Sharar, discharged M.S.’s son from Hospital. M.S. alleges Dr. Sharar included the Misdiagnosis in his discharge summary report. M.S. alleges that in doing so, Dr. Sharar “transferred” the Misdiagnosis to others. I infer that this “transfer” refers to sharing information on his son’s medical file with different members of the Medical Team and, later, with others through medical referrals. M.S. alleges that in addition to transferring the Misdiagnosis to others, Dr. Sharar discharged his son “without any help” and did not refer his son to “Sunny Hill Century to clarify the Autism Spectrum” diagnosis or prescribe his son any medication.

[11] On October 23, 2019, M.S. says he returned to the Hospital with his son. He alleges a doctor from Neurology told him that the Hospital was not a “hotel to admit your son” and sent him and his son home. M.S. did not name this physician in the complaint form or in his particulars.

[12] M.S. says that on around January 2, 2020, one of the Proposed Respondents, Dr. Elahi, “transferred” the Misdiagnosis to others and refused to admit his son to the Child and Adolescent Psychiatric Emergency unit at the Hospital [CAPE]. M.S. further alleges Dr. Elahi “transferred” incorrect information that his wife had been diagnosed with depression and was taking anti-depressants. M.S. also alleges Dr. Elahi reported that M.S. said he was on the “brink of psychosis.” M.S. denies he said this to Dr. Elahi.

[13] On March 3, 2020, M.S. says Dr. Saran formed and documented the view that M.S. and his family did not accept the “Autism diagnosis” because of “Wrong Cultural” beliefs based on their place of origin. He says Dr. Saran, and others, then used this as an excuse to cover up the Misdiagnosis.

[14] M.S. says that on May 28, 2020, Dr. Elahi documented in his son’s medical record that his son “may have had some neurodevelopmental symptoms as evidenced by his parents moving to Canada to get better healthcare.” M.S. also alleges Dr. Elahi wrote on his son’s medical record that the family had considered moving to the U.S. instead of Canada to access the Mayo Clinic, and that [M.S.’s son] apparently did not get into private school in Iran.” M.S. says Dr. Elahi also asked the Mental Health Department to call his relatives in Iran, and his son’s kindergarten teacher in Iran. M.S. says the assertion that he and his family came to Canada for medical treatment, and the opinion that his son’s symptoms were longstanding, are incorrect. He alleges these views impacted his relationship with Dr. Elahi and others in the Medical Team.

[15] M.S. says the Misdiagnosis and other incorrect information transferred between members of the Medical Team resulted in people forming a “bad view of the family.” He further alleges members of the Medical Team transferred the Misdiagnosis and other incorrect information to the Ministry of Children and Family Development [MCFD] without clarifying information with him and his wife, in their roles as parents.

[16] Finally, M.S. alleges Dr. Anna Kalenchuk, a child psychiatrist at the Mental Health Department of the Hospital, transferred the Misdiagnosis outside of B.C., including to the U.S. This appears to be related to decisions to refer M.S.’s son to physicians outside the Hospital for second and third opinions.

[17] At some point, M.S. says he learned about the “incorrect information” being documented and transferred in his son’s medical records, which prompted him to file a complaint with the Patient Care Quality Office, and later, to this Tribunal.

[18] In sum, M.S.’s complaint arises from events that took place at the Hospital between approximately October 12, 2019 and May 10, 2021. M.S. says that during this time he had over 100 meetings about his son’s health. The Hospital says that during that period, M.S.’s son was admitted to the Hospital on the following dates: from October 13 to 18, 2019; on January 2 and 14, 2020; on March 13, 2020, from May 21 to July 28, 2020, on April 11, 2021 and from April 23 to May 10, 2021. The Hospital says charting from these various admissions totals approximately 3,404 pages, including dozens of medical reports relating to these admissions.

III ANALYSIS AND DECISION

A. Preliminary Issue Regarding Disclosure – Rule 23

[19] On May 1, 2024, the Proposed Respondents filed an application for document disclosure under Rule 23. The Proposed Respondents sought an order that the Hospital produce the “complete medical records of M.S.’s son for the period from October 12, 2019, to July 28, 2020” [the Medical Records]. The Hospital consented to the application but took the position that they needed M.S.’s consent prior to disclosing the Medical Records. M.S. did not consent and opposed the application.

[20] The Proposed Respondents put forward two arguments in favor of their disclosure application. First, they submitted they needed to be able to review the Medical Records at this stage in the complaint process to determine their position and make any meaningful submissions on the Hospital’s application to add them as respondents to the complaint. They argued it would be highly prejudicial if they had to respond to the Hospital’s application without first reviewing the Medical Records. They also stated that their response to the application would end up being superficial at best, leaving the Tribunal without the information it needs to properly adjudicate the application.

[21] The Medical Records may well be relevant or arguably relevant to facts in issue in the complaint. That said, on May 21, 2024, I denied the application and informed the parties in a letter decision that the application to add the Proposed Respondents would be decided based on an assessment of the complainant’s allegations, without consideration of the evidence or alternate scenarios put forward by the Hospital or Proposed Respondents. I did not find it necessary or appropriate to order disclosure of documents to the Proposed Respondents before the Tribunal has decided to add them as a party and notified the parties as such. I also informed the parties that I would provide further reasons for my decision to deny the application. These are those reasons.

[22] When the Proposed Respondents sought access to the Medical Records, they had not yet been added to the complaint. In that context, the request for disclosure must be considered against the narrow issues in the Rule 25(2) application before me. The Proposed Respondents state they required the Medical Records to make their submission on that application. However, they did not expand beyond this by, for example, pointing to specific documents or categories of documents that are relevant or arguably relevant to one of the issues I must decide in the application. For example, the Proposed Respondents did not point to specific documents as being arguably relevant to an issue under Rule 25(2), such as timeliness. Rather, the request was extremely broad: “complete medical records of M.S.’s son for the period from October 12, 2019, to July 28, 2020.” I understand that by October 2021, the Medical Records consisted of over 3000 pages. By July 28, 2020, the records would have been significant. Without any direction on which parts of the Medical Record are relevant or arguably relevant to an issue I must decide on the Rule 25(2) application, the Proposed Respondents have failed to meet their burden in the application. Until the Proposed Respondents file their response to the complaint, there is no obligation on M.S., or the Hospital, to disclose documents.

[23] The second argument made by the Proposed Respondents is about who holds the privilege over the Medical Records. As I understand it, they take the position that the Hospital does not require M.S.’s consent prior to granting them access to the Medical Records. I do not find it necessary to for me to decide or comment on the issue of who holds and can waive privilege over medical documents in reaching my decision on this application. In this proceeding the Hospital has taken the view that it requires M.S.’s consent and it is not necessary for me to consider this issue in these circumstances. In due course, M.S. and the Hospital may be required to disclose all relevant or arguably relevant documents to an issue in the complaint or remedy sought. This proceeding is not at that stage yet.

[24] In sum, the Proposed Respondents have not persuaded me that the Medical Records, in their entirety, are relevant or arguably relevant to the narrow issues I must consider in deciding the Rule 25(2) application before me. I deny the application under Rule 23.

B. Preliminary Issue Regarding Anonymization – Rule 5

[25] The Tribunal’s proceedings are presumptively public, and parties’ names are generally included in published decisions. However, under Rule 5(6) of the Tribunals’ Rules of Practice and Procedure, the presumption can be overcome when a party applies for an order to limit the public disclosure of their personal information. In making this request, a party must state why their privacy interests outweigh the public interest in access to the Tribunal’s proceedings. For the following reasons, I decline the Proposed Respondents’ request for anonymization.

[26] In their submissions on this application, the Proposed Respondents ask that in the event the Tribunal adds them to the complaint, their names “also be anonymized as the complainant’s and his son’s have been.” I do not have any further submissions in support of this request before me. Most notably, I do not have any submissions on how the above-noted criteria set out in Rule 5(6) apply in their circumstances.

[27] In contrast, the Tribunal’s decision to anonymize the names of the complainant, the complainant’s son, and other members of his family was made under Rule 5(7) and is based on the uncontroversial presumption that the privacy interests of a minor outweigh the public interest in access to the Tribunal’s proceedings. There is no presumption that because a minor, and consequently the names of that minor’s family members, have been anonymized under Rule 5(7), other named individuals in a complaint will also be anonymized. The decision to anonymize M.S. was made specifically for the purposes of protecting the privacy interests of his son, who is a minor.

[28] Ultimately, I have found that it is appropriate to add three of the Proposed Respondents to this complaint as parties. In the absence of submissions explaining why the Proposed Respondents’ privacy interests outweigh the public interest in access to the Tribunal’s proceedings, I decline to exercise my discretion to anonymize their names. This decision does not limit the Proposed Respondents from bringing an application to limit public disclosure of their personal information, including their names, in any future Tribunal decisions on this complaint under Rule 5(6).

C. Application to Add Respondents – Rule 25(2)

[29] The Hospital applies to add the Proposed Respondents as respondents to the complaint under Rule 25(2). Rule 25(2) sets out the following factors that the Tribunal will consider when deciding whether to add a respondent after the one-year time limit for filing complaints:

a. Whether adding the proposed respondent will further the just and timely resolution of the complaint;

b. Whether facts are alleged that, if proven, could establish a contravention of the Code by the proposed respondent; and

c. Whether it is in the public interest to add the proposed respondent to the complaint, and whether no substantial prejudice will result to any person because of the delay.

[30] I begin by considering whether M.S. has alleged facts which, if proven, could amount to discrimination under the Code by the Proposed Respondents.

1. Does the complaint allege facts that, if proven, could establish a contravention of the Code by the Proposed Respondents?

[31] To prove his case against the Proposed Respondents, M.S. would need to prove he experienced an adverse impact in the area of services, and his place of origin and/or family status factored into that adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33.

[32] At the screening stage, M.S. is not required to prove his case. Rather, he must only meet the low threshold of alleging facts that if proven could be a contravention of the Code. As indicated by the words set out in Rule 25(2)(b), the Tribunal will assume the facts alleged can be proven: Taylor v B.C. (Ministry of Attorney General) and others (No. 2), 2013 BCHRT 173 at paras. 8 and 17. Neither the Hospital nor the Proposed Respondents appear to dispute that M.S. meets the first criteria of the test for discrimination. He is protected from discrimination based on his place of origin – Iran – and his family status – as the father to and caregiver of a minor child.

[33] For the Hospital’s application to succeed, therefore, the complaint must allege facts that if proven could meet the second and third elements of the test for discrimination in relation to the Proposed Respondents.

[34] I start by addressing the Proposed Respondents’ submission that they were not in a service relationship with M.S. and, as such, there is no arguable contravention against them under s. 8 of the Code. I disagree with this characterisation of the relationship between M.S. and the Proposed Respondents as members of his son’s Medical Team. I am satisfied that as a parent to a minor child receiving treatment at the Hospital, M.S. has alleged facts that are capable of proving he was in a service relationship with the Medical Team, including the Proposed Respondents, and employees of the Hospital on the Medical Team. My conclusion is consistent with the Tribunal’s approach in analogous circumstances. For example, in the education environment, the Tribunal has held discriminatory conduct by a school can amount to discrimination in services against a parent: The Child by The Parent and The Parent v. The Preschool and another , 2019 BCHRT 185 at para. 38; Mother obo others v. School, 2014 BCHRT 103 at para. 47; Mangel and Yasué obo Child A v. Bowen Island Montessori School and others, 2018 BCHRT 281 at paras. 237-238; Independent School Authority v Parent, 2022 BCSC 570 at para. 68. In my view, the underlying principle applied in the educational context in those cases, also applies in the medical context when minors are involved.

[35] Next, I address the Proposed Respondents’ submission that the complaint does not allege facts that, if proven, would show they denied M.S., or his son, a service or benefit customarily available to the public. The Proposed Respondents say there is no pleading or indication in the complaint that they denied M.S. or his son a service or benefit. I am not persuaded by this argument because the scope of s. 8 is much broader than how it is framed by the Proposed Respondents. While it is true that adverse impacts might arise in circumstances where a person is denied a service, adverse impacts also arise in circumstances where a person is receiving a service or in a service relationship. This is what M.S.’s complaint alleges to have occurred.

[36] I now consider whether the complaint alleges acts or omissions of the Proposed Respondents adversely impacted M.S. in connection with his place of origin and/or family status.

[37] The Proposed Respondents submit a complainant’s feelings that a respondent’s conduct was discriminatory is not sufficient to form the basis for an inference of discrimination. Rather, a complainant must provide a factual basis for such an inference. The Proposed Respondents argue there is no factual basis for an inference of discrimination in the complaint and so the complaint against them is bound to fail.

[38] The Hospital submits the complaint contains multiple allegations that, if proven, establish a contravention of the Code by the Proposed Respondents. In its submissions, the Hospital says the allegations in the complaint are as follows:

· Dr. Elahi transferred incorrect and discriminatory medical information that the Complainant’s family moved to Canada to get medical help, and incorrect information about the Complainant and his wife’s mental health;

· Dr. Sharar transferred incorrect and discriminatory information;

· Dr. Saran transferred incorrect and discriminatory information which caused medical neglects and medical misdiagnosis; and

· Dr. Kalenchuk transferred incorrect and discriminatory information.

[39] The Hospital argues that if M.S. proves negative stereotypes about his ancestry or place of origin influenced the Proposed Respondents’ medical decision-making, he may establish a breach of the Code .

[40] For the following reasons, I am satisfied that the complaint alleges arguable contraventions against Dr. Saran, Dr. Sharar and Dr. Elahi. I am not so satisfied with respect to Dr. Kalenchuk.

a. Allegations against Dr. Saran and Dr. Sharar

[41] As explained earlier in this decision, M.S. alleges Dr. Saran, a psychiatrist at the Hospital’s Mental Health Department, diagnosed his son with Autism and formed the view that his son’s symptoms were longstanding symptoms, which M.S. says was incorrect. M.S. further alleges Dr. Saran later formed the opinion that M.S. did not accept the Autism diagnosis for cultural reasons related to his identity as an Iranian. M.S. says Dr. Saran’s Misdiagnosis and opinion were documented in his son’s medical records by Dr. Sharar and impacted how members of the Medical Team responded to M.S. and impacted the medical care his son received. The complaint also alleges Dr. Saran’s opinion adversely impacted M.S.’s ability to carry out his family obligations, which included advocating on behalf of and caring for his son.

[42] In my view, the alleged facts regarding Dr. Saran and Dr. Sharar, if proven, could amount to discrimination under the Code. The crux of M.S.’s allegation is that Dr. Saran formed opinions based on stereotype because of his identity as an Iranian-born father. M.S. has also alleged that Dr. Saran’s opinions, which he says Dr. Sharar documented in his son’s medical file, adversely impacted him because those opinions impacted Dr. Saran’s, and others’, views of him and his son. In my view, these allegations meet the low threshold required at this stage of the proceeding. The complaint alleges an arguable contravention against Dr. Saran and Dr. Sharar.

b. Allegations against Dr. Elahi

[43] The complaint alleges Dr. Elahi made comments about M.S. and his wife’s mental health. It also alleges Dr. Elahi stated and documented his opinion that M.S.’s son’s symptoms were longstanding and that M.S. and his family came to Canada to access healthcare. If proven, the allegation that Dr. Elahi formed the view that M.S. and his family came to Canada to access healthcare is capable of connecting the adverse impacts M.S. says he experienced with his protected characteristics. In other words, the allegation that Dr. Elahi held stereotypical opinions about M.S. based on his place of origin, and that this opinion adversely impacted M.S.’s service relationship with and the Medical Team, meets the low threshold required at this stage. The complaint alleges an arguable contravention against Dr. Elahi.

d. Allegations against Dr. Kalenchuk

[44] M.S. alleges Dr. Kalenchuk transferred the discriminatory information documented on his son’s file “out of B.C. and [to] the U.S.” In my view, the complaint against Dr. Kalenchuk does not allege facts that in my view are capable of proving that by transferring information, Dr. Kalenchuk’s actions adversely impacted M.S. The complaint alleges Dr. Kalenchuk transferred the medical file outside of B.C. to specialists in the U.S. for another opinion. I have no information before me that would indicate M.S. was adversely impacted by Dr. Kalenchuk’s decision to seek a second opinion. The Hospital has not persuaded me the complaint alleges an arguable contravention against Dr. Kalenchuk.

[45] In sum, I am persuaded by the Hospital that M.S.’s complaint alleges facts that could prove Dr. Saran, Dr. Sharar, and Dr. Elahi held and/or perpetuated discriminatory views about him, and those views adversely impacted M.S.’s ability to meet his parental obligations to his son. I am not persuaded the complaint alleges an arguable contravention against Dr. Kalenchuk however. The application to add Dr. Kalenchuk is denied.

2. Does adding Dr. Saran, Dr. Sharar and Dr. Elahi support the just and timely resolution of the complaint?

[46] The Hospital submits adding the Proposed Respondents [1] will further the just and timely resolution of the complaint. The Hospital says the conduct of the Proposed Respondents is at the core of the complaint. It notes M.S. has provided two sets of particulars setting out the allegations against the Proposed Respondents. Given this, the Hospital argues, adding the Proposed Respondents will ensure all the necessary parties can present their side to the Tribunal. The Hospital further argues that without the Proposed Respondents participation, central issues to the complaint with not be before the Tribunal. It also says adding the Proposed Respondents will aid the Tribunal’s truth-seeking function without causing undue delay in the disposition of the complaint.

[47] The Proposed Respondents argue it would not further the just and timely resolution of the complaint to add them as respondents because it would expand the scope of the allegations. They say the Tribunal should not interfere with M.S.’s decision on how to frame his case. The Hospital disagrees.

[48] Having read the complaint, I agree with the Hospital that adding the Proposed Respondents does not fundamentally alter the complaint or expand the scope of the allegations. I am not persuaded by the Proposed Respondents’ position that adding them would interfere with M.S.’s decision on how to frame his case. M.S. is a self-represented litigant for whom English is a second language. Though his complaint is not framed in legal terms, above I have determined that it includes allegations that acts or omissions of three of the Proposed Respondents, Dr. Saran, Dr. Sharar and Dr. Elahi, constitute discrimination. Further, and as the Hospital notes, this Tribunal has precedent for adding physicians to a complaint in analogous circumstances: see Kerrigan v. Northern Health Authority, 2023 BCHRT 73.

[49] Even if adding Dr. Saran, Dr. Sharar and Dr. Elahi were to expand the scope of M.S.’s complaint, I find it would facilitate the just and timely resolution to add them in circumstances where it is unclear as to whether the Hospital, as respondent, would be held liable for their conduct in the event M.S. proves his allegations against them. The Hospital argues the Proposed Respondents are independent contractors. The Hospital submits it has long been established that hospitals are not responsible for the negligence of non-employed medical staff, such as independent contractor physicians. At this stage, it is not necessary for me to decide whether the Hospital can be held liable for the discriminatory conduct of a physician in this case, if any is proven. The Tribunal will need to decide this issue at a later stage, with the benefit of evidence and full submissions from the parties. That M.S. could succeed in his complaint but be left without recourse to a remedy under s. 44(2) of the Code is a compelling reason for adding Dr. Saran, Dr. Sharar and Dr. Elahi to the complaint. On that basis, I find that adding them will further the just and timely resolution of the complaint. Further, I find that adding Dr. Saran, Dr. Sharar and Dr. Elahi at this stage will not add significant time to the Tribunal’s process for resolving the complaint since the complaint is at an early stage.

3. Is the complaint against the Proposed Respondents out of time?

[50] Under s. 22(3) of the Code, the Tribunal may accept a complaint filed more than one year after the alleged contravention where it determines that it is in the public interest to do so, and no substantial prejudice would result to any person because of the delay. The same considerations apply to an application to add a respondent outside of the one-year time limit.

a. Is it in the public interest to add the Proposed Respondents?

[51] When considering whether it is in the public interest to add a respondent outside of the time limit, the Tribunal will consider a non-exhaustive list of factors, including the length of the delay, reasons for the delay, and the public interest in the complaint itself: British Columbia (Minister of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 [Mzite] at para. 53. These factors are important, but not necessarily determinative. The inquiry is fact and context specific, and assessed in accordance with the purposes of the Code: Brelecic v. Mike’s No Frills, 2021 BCHRT 168at para. 13. While the principle of discoverability does not extend the time limit, it is also relevant to the determination of public interest: Fullerton v. Rogers Foods, 2015 BCHRT 49at para. 24.

i. Length of delay and reasons for delay

[52] In considering the length of the delay, the starting point is that the purpose of the time limit is to ensure that complainants pursue their human rights remedies with some diligence, and that it is in the public interest for them to identify appropriate respondents to a complaint within the time limit: Buchanan v. Providence Health Care and others, 2023 BCHRT 50at para. 33. One reason for this is to allow respondents “the comfort of performing their activities without the possibility of late-filed complaints”: Dr. A v. Health Authority and another (No. 2), 2022 BCHRT 26at para. 22. This is so that respondents can take remedial steps if appropriate, and to protect respondents from having to address dated complaints: School District v. Child (Litigation guardian of), 2018 BCCA 136at para. 79; Kamloops (City) v. Spina, 2021 BCSC 723at para. 80.

[53] The events that gave rise to this complaint occurred between October 2019 and October 2021. In his complaint form, M.S. says the last alleged act of discrimination occurred on October 15, 2021. The Proposed Respondents did not make any submissions on how the Tribunal should calculate the time limit in this case, and the Hospital appears to have treated this case as a continuing contravention. For the purposes of this application, I will treat it as such and calculate time from the last alleged contravention. Therefore, to fall within the one-year time limit, the complaint against the Proposed Respondents would have had to be filed by October 15, 2022. The Hospital filed the application to add them to the complaint on March 7, 2024, a delay of 18 months.

[54] On the reasons for the delay in M.S.’s case, the Hospital submits that that while there is a delay in bringing this application, the delay is not attributable to the Hospital. It says that it did not receive the complaint until April 28, 2023, and that once it received the complaint it sought further particulars. The Hospital also notes, and the record confirms, that it was not clear that M.S. intended to include the Proposed Respondents until a case management conference on January 26, 2024. The purpose of that case management conference was so that the Hospital could determine who was involved in the alleged discrimination: Hospital staff and/or physicians. It is understandable that the Hospital sought this clarification given the Hospital’s position that it cannot be held liable for the discriminatory acts of physicians.

[55] The Hospital also refers to two cases where the tribunal has accepted complaints despite significant delays: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170 [Naziel-Wilson] at para. 19; Mzite at paras. 48, 57. In Naziel-Wilson, the Tribunal considered that Ms. Wilson faced significant health barriers and required assistance in filing her complaint. When first she got assistance, she received erroneous advice. Eventually, with the assistance of a second advocate, Ms. Wilson filed her human rights complaint, and the Tribunal accepted it 13 months past the deadline for filing given the circumstances: see para. 22. In Mzite, the complaint was filed between 19 to 22 months after the then 6 months long deadline for filing, a significant delay. There too, the Tribunal considered the significant barriers faced by the Complainant and accepted the late filed complaint: see paras: 50-52. I infer that the Hospital takes the position that M.S. faces barriers that explain why he did not make the application to add the Proposed Respondents himself.

[56] I have no submissions from the Proposed Respondents on the timeliness issue.

[57] As with any decision on whether it is in the public interest to accept a late-filed complaint, I must consider the reasons for the 18-month delay in brining the application to add the Proposed Respondents with the specific circumstances of this case in mind. I must also consider the purposes of the Code.

[58] M.S. is a is self-represented litigant who speaks English as a second language. He has at times, required the use of a Persian-English interpreter to communicate with the Tribunal. The Hospital has also required two sets of particulars from M.S. to understand the scope of his complaint. When M.S. named the Hospital as the sole respondent to the complaint on October 25, 2021, he did not appear to understand, and could not have been expected to understand, that the Hospital might not be liable for some, or all, of the allegations set out in the complaint. As the Hospital notes, until January 26, 2024, it was not clear that M.S. intended for the Proposed Respondents to be named given that he did not understand the liability issues that arise when a Hospital or Health Authority is named as a respondent to a human rights complaint.

[59] In some circumstances, the Tribunal might have flagged this as an issue for M.S. at screening. That did not happen in this case. It was only after the Tribunal notified the Hospital of the complaint against it, and the Hospital sought particulars to determine the names of the Proposed Respondents, that it became apparent that M.S.’s complaint included allegations against them, in their roles as physicians on the Medical Team. The fact that the Tribunal did not notify the Hospital of the complaint against it until April 28, 2023, was a result of the backlog of human rights complaints at the screening stage of the Tribunal’s process and was beyond M.S. or the Hospital’s control. It was only when the Hospital sought particulars and then further clarification with the assistance of the Tribunal in a case management conference that it became clear that M.S.’s allegations included allegations against the Proposed Respondents. In my view, these circumstances weigh in favour of adding the Proposed Respondents past the filing deadline.

[60] Ultimately, I am persuaded by the Hospital that the reasons for the delay in these circumstances weigh in favour of granting the application.

ii. Public interest in the complaint itself

[61] The Hospital also submits that while it denies any racial discrimination occurred in this matter, racism in medical settings is an issue that attracts the public interest and weighs in favour of granting this application.

[62] The Proposed Respondents submit it is not in the public interest to add them because there is no factual basis for an inference of discrimination. I have already explained above why I am not so persuaded.

[63] The Proposed Respondents also submit that it is not in the public interest to add them to the complaint because it has no reasonable prospect of success. They argue the Tribunal should exercise its discretion under s. 27(1)(c) of the Code and take this into account when making its decision on whether to add them as parties under Rule 25(2). I am not persuaded by this argument. Deciding whether a complaint has a reasonable prospect of success is not the task before the Tribunal in a Rule 25 application. As noted above, the threshold for a complaint to make it past screening is low. So too is the threshold in an application under Rule 25(2). I have already determined the complaint alleges arguable contraventions of the Code against Dr. Saran, Dr. Sharar and Dr. Elahi. I have done so based on the allegations in the complaint and the particulars to the complaint only. Dr. Saran, Dr. Sharar and Dr. Elahi may well have compelling arguments on why, in their view, the complaint against them has no reasonable prospect of success. However, this is not the appropriate time for the Tribunal to consider those arguments. The appropriate time to do so is much later in the process.

[64] In my view, it is in the public interest to add Dr. Saran, Dr. Sharar and Dr. Elahi as respondents to the complaint. First, doing so will ensure the Tribunal has the submissions it needs from the appropriate parties. Though the Proposed Respondents could provide evidence as witnesses, if the Hospital disputes liability for their actions, it may well be that Dr. Saran, Dr. Sharar and Dr. Elahi, whose conduct is central to the complaint, are necessary respondents to ensure the remedial purposes of the Code are fulfilled if M.S. proves discrimination. M.S. is a self-represented litigant who could be left in a situation where if he proves his case, he may not obtain a remedy if Dr. Saran, Dr. Sharar and Dr. Elahi are not added. I also agree with the Hospital that proceeding with complaints of racial discrimination in medical settings is in the public interest in the specific circumstances of this case.

[65] I am of the view that it is in the public interest to add Dr. Saran, Dr. Sharar and Dr. Elahi outside of the one-year time limit.

a. Substantial Prejudice

[66] The Proposed Respondents did not make any submission on whether adding them as parties to the complaint would result in substantial (or any) prejudice. The Hospital submits there is no substantial prejudice that results from the delay in submitting this application. It notes the Proposed Respondents can access the medical records pertaining to M.S.’s son’s and they are aware of the allegations that led to the complaint.

[67] In my view, any potential prejudice that the Proposed Respondents might face on account of the 18-month delay, is mitigated by the large volume of contemporaneous documentary evidence available to them through document disclosure. I find that any prejudice that might arise as a result of fading memories will be significantly mitigated by the availability of these medical records. I find no substantial prejudice will result because of the delay in adding them.

IV CONCLUSION

[68] For the above reasons, I deny the Proposed Respondents’ application for the disclosure of M.S. son’s complete medical records, for the purposes of responding to this application only.

[69] I deny the application to limit publication of the Proposed Respondents’ names.

[70] I deny the application to add Dr. Anna Kalenchuk as a respondent.

[71] I allow the application to add Dr. Saran, Dr. Sharar and Dr. Elahi to the complaint. The style of proceeding is amended to add Dr. Kalwinder Saran, Dr. Ziad Sharar and Dr. Fawad Elahi as respondents.

[72] The Tribunal will now set dates for Dr. Saran, Dr. Sharar and Dr. Elahi to file their response to the complaint.

Kylie Buday

Tribunal Member

Human Rights Tribunal