The Complainant v. The Regulator, 2024 BCHRT 316
Date Issued: November 21, 2024
File: CS-004368
Indexed as: The Complainant v. The Regulator, 2024 BCHRT 316
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:
The Complainant
COMPLAINANT
AND:
The Regulator
RESPONDENT
REASONS FOR DECISION
APPLICATION TO LIMIT PUBLICATION AND TO DISMISS A COMPLAINT
Rule 5 and Section 27(1)(c)
Tribunal Member: Andrew Robb
Counsel for the Complainant: Shauna R. Gersbach
Counsel for the Regulator: Christoper J. Bakker
I INTRODUCTION
[1] The Complainant is a member of a regulated health profession. The Regulator is the professional regulator of that profession. The Complainant was unable to practice in his profession for a period of time due to a regulatory matter. Before he could return to practice, the Regulator had to be satisfied that he competently displayed certain clinical skills. He required accommodation in the assessment of his skills, due to his disability, and he says the Regulator failed to act reasonably in the accommodation process and failed to accommodate him in a timely way. He says this was discrimination, contrary to s. 14 of the Human Rights Code .
[2] The Regulator denies discriminating. It says it reasonably accommodated the Complainant, and any delays in the accommodation process were due to reasons beyond its control.
[3] The Regulator applied to dismiss the complaint because it has no reasonable prospect of success. The Complainant responded to the application. The Regulator did not file a reply submission.
[4] The application to dismiss requires me to determine whether the Regulator is reasonably certain to prove, at a hearing, that it acted reasonably in the accommodation process, particularly in terms of how long it took to decide whether to conduct an individualised assessment of the Complainant’s clinical skills. For the reasons set out below, I find the Regulator is not reasonably certain to prove this, and I dismiss the application.
[5] The Complainant applied to limit publication of any information that could identify him. He says this requires anonymisation of both parties’ names. He says identifying the Regulator would make it possible for members of the public to identify him, because of information about him on the Regulator’s website. It will be apparent from the style of cause that I decided to grant the Complainant’s application. I find the Complainant’s privacy interest outweighs the public interest in knowing his identity. Based on the parties’ submissions, I also find that protecting his identity requires anonymising the Regulator.
[6] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
[7] I apologise to the parties for the Tribunal’s delay in making this decision.
II BACKGROUND
[8] In or around 2016, the Complainant was the subject of regulatory proceedings administered by the Regulator’s Inquiry Committee, and he temporarily withdrew from practising his profession. The regulatory proceedings resulted in a consent order between the parties, approved by the Inquiry Committee in 2017.
[9] The consent order required the Complainant to complete a series of mentorships, assessments, and examinations, before he could return to practice. One of these was a clinical skills assessment administered by an examination board [theBoard]. The Board is independent from the Regulator. The Regulator says it relies on the Board to carry out testing and assessments, and does not provide education or testing itself.
[10] The consent order said the Complainant had to complete the Board’s clinical skills assessment by May 2019, or he would lose his registration with the Regulator, unless the Regulator agreed to extend the deadline. The Complainant attempted the Board assessment, unsuccessfully, in June 2018 and December 2018.
[11] In February 2019, the Complainant provided medical documentation to the Regulator which showed that his ability to complete the Board assessment was impacted by a mental disability, namely an anxiety and panic disorder. He requested an extension of the time limit set out in the consent order, and an opportunity to appeal his Board assessment results or attempt the Board assessment a third time, with accommodations.
[12] In March 2019, the Regulator advised the Complainant that it had contacted the Board about his request, and the Board said it would only entertain a request for an appeal or re-attempt if it came from the Regulator, on the Complainant’s behalf. It would not communicate directly with the Complainant. The Regulator told the Complainant it would agree to submit his request to the Board. The Inquiry Committee later agreed to extend the time limit for the Complainant to complete the Board assessment.
[13] In April 2019, the Board notified the Regulator, and the Regulator notified the Complainant, that the Board would allow the Complainant to re-attempt the clinical skills assessment only if the Regulator agreed to indemnify the Board against any claim by the Complainant, in relation to the assessment. The Regulator advised the Complainant that it had not yet decided whether to agree to this condition.
[14] On April 26, 2019, the Complainant proposed another alternative: instead of appealing or re-attempting the Board assessment, he could re-attempt the parts of the Board assessment in which he had previously been unsuccessful, with appropriate accommodations, in the presence of a qualified invigilator, but outside the formal Board process. He referred to this as an individualised skills assessment.
[15] In May 2019, the Regulator requested additional information from the Complainant about his medical condition and its impact on his ability to complete the Board assessment. He promptly provided the requested information, including a letter from his psychiatrist. The letter said, among other things, that it would be helpful for the Complainant to have a psychiatric independent medical examination [IME].
[16] In June 2019, the Regulator advised the Complainant that it had decided not to agree to the Board’s indemnity condition.
[17] Later in June 2019, the Regulator advised the Complainant he would have to attend an IME, in September 2019, before it would consider any accommodations.
[18] The Complainant attended the IME. The psychiatrist who conducted the IME reported, on September 24, 2019, that the Complainant’s mental disability affected his ability to complete the Board assessment. The psychiatrist recommended accommodations that could diminish the impact of the Complainant’s mental disability on his ability to complete the assessment.
[19] On or about November 22, 2019, the Regulator notified the Complainant that it had reversed its decision about the Board’s indemnity condition. It would now agree to indemnify the Board, in relation to the Complainant. This meant the Complainant could re-attempt the Board assessment, with the accommodations recommended in the IME report. But it appears that the Board only offered the clinical skills assessment twice a year, in December and June. There is no evidence before me about the deadline date for registering for the December 2019 Board assessment, but it appears that by November 22, 2019, that deadline had passed. So the Complainant reiterated his request for the Regulator to give him an individualised skills assessment.
[20] In January 2020, the Regulator notified the Complainant that it would not agree to his request for an individualised skills assessment. In its application to dismiss it says Board assessments are objective and reliable, and Board certification is an occupational requirement for all members of the Complainant’s profession in Canada, and all components of the Board’s clinical skills assessment overlap and had to be assessed concurrently, so an individualised assessment would not be as reliable.
[21] The Complainant began preparing for the June 2020 Board assessment. But in March 2020, the June 2020 assessment was cancelled, for all candidates, due to the pandemic. The Complainant reiterated his request to the Regulator for an individualised skills assessment, but the Regulator still would not agree to this request. So the Complainant registered for the December 2020 Board assessment.
[22] In September 2020, the December 2020 assessment was cancelled, for all candidates, due to the pandemic. The Complainant reiterated his request to the Regulator for an individualised skills assessment. This time the Regulator was willing to discuss it.
[23] An amendment to the consent order, to allow an individualised skills assessment instead of a Board assessment, had to be approved by the Regulator’s Inquiry Committee. The Complainant urged the Regulator to set up a meeting of the Inquiry Committee as soon as possible, to consider his proposal for an individualised skills assessment. The meeting happened on December 15, 2020, and the Inquiry Committee approved the proposal. It agreed that the individualised skills assessment would replace the Board assessment, provided that the Complainant passed the individualised skills assessment on the first attempt.
[24] The individualised skills assessment was scheduled for March 2021. The Complainant successfully completed it, and then completed the remaining requirements under the consent order. He became eligible to return to practice in 2022.
III DECISION
A. Application to limit publication
[25] The Complainant applies to limit publication of any information that could identify him. He seeks an order that any decisions or records that are made public as part of the human rights complaint process should anonymise not only himself but also the Regulator. He says it is necessary to anonymise the Regulator, in order to ensure his identity is not published, because the Regulator published information about him on its website, including his name and the terms of the consent order. The Complainant says any member of the public who knows the Regulator’s identity and the terms of the consent order could search the Regulator’s website to find his identity.
[26] The Regulator does not oppose the Complainant’s request to anonymise his own name, but objects to his request to anonymise the Regulator. It says there is a public interest in its identity being published, because it has a duty to serve and protect the public, and the public ought to know how it does so.
[27] For the following reasons, I find it is appropriate to anonymise the Complainant’s identity. Based on the parties’ submissions, I find that doing so requires the anonymisation of the Regulator’s identity, at this stage in the Tribunal’s process.
[28] Complaints at the Tribunal are presumptively public: Mother A obo Child B v. School District C, 2015 BCHRT 64 at para. 7. This openness serves four main goals: maintaining an effective evidentiary process, ensuring that Tribunal members act fairly, promoting public confidence in the Tribunal, and educating the public about the Tribunal’s process and development of the law: Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326 at para. 61; JY v. Various Waxing Salons, 2019 BCHRT 106 at para. 25. These goals align with the purposes of the Code, which include fostering a more equitable society and identifying and eliminating persistent patterns of inequality: Code, s. 3. The Tribunal furthers these purposes through its public decisions: A. v. Famous Players Inc. , 2005 BCHRT 432 at para. 14.
[29] The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: TribunalRules of Practice and Procedure, Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private detail in the complaint, harm to a person’s reputation, or any other potential harm: JYat para. 30.
[30] The Complainant says his identity should not be published because his complaint concerns his mental disability, and the stigma associated with mental disabilities creates a risk that publication of his name could harm his professional reputation. He says this could undermine his ability to care for patients and earn an income. He relies on cases where the Tribunal anonymised the identity of parties in order to prevent them from being exposed to the stigma associated with mental health concerns: X.P. obo J.R. v. The Hospital and The Correctional Centre , 2018 BCHRT 4 at paras. 5-7; The Candidate v. Ernst & Young LLP , 2020 BCHRT 119 at para. 14. He also cites cases where the Tribunal anonymised the identities of health professionals, because publication of their name could harm their ability to care for patients: M.K. v. Health Authority and others , 2014 BCHRT 34 at paras. 6-9; The Pharmacist v. The Doctor and another , 2019 BCHRT 176 at para 11.
[31] I accept that there is a risk of stigma that could attach to the Complainant if his mental health issues became a matter of public knowledge. I also accept this risk is especially acute for a health professional, because the stigma could undermine the element of trust that is essential to the relationship between health professionals and their patients. Without any objection from the Regulator, I find it is appropriate to anonymise the Complainant’s name and identifying details.
[32] The Complainant’s request to anonymise the Regulator is more complicated. I accept the Regulator’s submission that there is a public interest in knowing its identity, as the regulator of a health profession that affects many members of the public.
[33] The Regulator says the Complainant has not advanced a specific argument as to the purpose of anonymising its identity, but this is not correct. The Complainant’s application says that under the Regulator’s policies, information about him and the consent order will be published on the Regulator’s website until 2027. Until then, he says, anyone who knows the date of the consent order or its requirements, and the name of the Regulator, can use that information to find out his identity. In the materials before me, the Regulator does not deny this.
[34] The Regulator relies on Complainant v. College of Physicians and Surgeons of BC (No. 2) , 2018 BCHRT 189 [CPSBC], where the Tribunal denied the complainant’s request to anonymise the regulator of a health profession. In that case the Tribunal found that identifying the respondent would not disclose the complainant’s identity because all practising physicians in the province were registered with the respondent: CPSBC at para. 20. As in CPSBC, all members of the Complainant’s profession must be registered with the Regulator. But it does not appear that the complainant in CPSBC explained how publishing the respondent’s identity could lead to the disclosure of their own identity. The Complainant distinguishes CPSBC on the basis that, while all members of his profession must be registered with the Regulator, only a small number of registrants have information about them posted on the Regulator’s website, in connection to regulatory proceedings that resulted in a consent order.
[35] In CPSBC and other cases, the Tribunal has found it is important for the Tribunal’s decisions to be understandable, and anonymising a respondent’s identity could hinder the ability of the public to understand how a decision is reached: CPSBC at para. 20. I agree with the Regulator’s submission that similar concerns arise in this case. Members of the public may be particularly interested in knowing how specific regulatory bodies respond to human rights issues. The public’s ability to understand the Regulator’s processes, and this decision in particular, could be undermined by anonymising both parties to the complaint.
[36] However, the Regulator does not deny that the Complainant has a legitimate interest in protecting his own privacy, in the context of this complaint. It does not deny that the Complainant’s identity is reported on its website, or that an interested person could identify him, if they knew the Regulator’s name. In the absence of any argument by the Regulator that is responsive to the reasons why the Complainant wants to anonymise the Regulator, I am satisfied that protecting the Complainant’s identity requires anonymising the Regulator as well. At this stage in the Tribunal’s process, I find the balancing of interests favours anonymising both parties.
[37] Since the full name of the Board could indicate the nature of the Complainant’s profession, and the identity of the Regulator, I have also decided to anonymise references to the Board.
[38] I order that:
a. The Tribunal will not publish or make available to the public any information that could identify the Complainant or the Regulator or the Board, in this complaint.
b. No person may publish information which could identify the Complainant or the Regulator or the Board, in connection with this complaint.
[39] The parts of this order pertaining to the Regulator and the Board shall apply only until the Tribunal makes a final decision about the merits of this complaint. At that point, the balancing of interests may have changed. It will be for the Tribunal Member who hears this complaint to determine, at that stage, whether the Complainant’s privacy interests continue to outweigh the public interest in knowing the identity of the Regulator and the Board.
B. Section 27(1)(c) – No reasonable prospect of success
[40] The Regulator applies to dismiss the complaint on the basis that it has no reasonable prospect of success: Code,s. 27(1)(c). Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[41] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.
[42] The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the “realm of conjecture”: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[43] The Regulator says the complaint should be dismissed under s. 27(1)(c) because it is reasonably certain to prove it reasonably accommodated the Complainant: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50. It says its conduct was based on registration standards, which it was statutorily required to uphold. To justify any adverse impact at a hearing, the Regulator would have to prove: (1) it adopted its registration standards for a purpose rationally connected to its function, (2) it adopted those standards in an honest and good faith belief that they are necessary to the fulfillment of that legitimate purpose; and (3) the standards are reasonably necessary to the accomplishment of that legitimate purpose: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3 at para. 54; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para. 20; Fossum v. Society of Notaries (No. 2) , 2011 BCHRT 310 at para. 290.
[44] The Complainant does not deny that the Regulator adopted its registration standards in good faith, for purposes which are rationally connected to the Regulator’s function. Nor does he deny that the Regulator accommodated him, eventually. But he says the Regulator acted unreasonably in the accommodation process, especially in terms of the time it took to agree to an individualised skills assessment. He relies on the Tribunal’s case law finding that timeliness must be considered in determining whether a respondent has met its duty to accommodate: Dunkley v. UBC and another , 2015 BCHRT 100 at para. 479; Bowker v. Strata Plan NWS 2539, 2019 BCHRT 43 at para. 51.
[45] When considering a complaint about a respondent’s accommodation process, the Tribunal applies a standard of reasonableness, not perfection:Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 425. In assessing whether the Regulator acted reasonably, the Tribunal will take a global approach, considering the matter as a whole, rather than focusing on each incident in the accommodation process in isolation: Klewchukat para. 413.
[46] As I understand the Regulator’s argument, it says it is reasonably certain to prove it acted reasonably, and any delays in the accommodation process were due to factors beyond its control such as the pandemic, the Board’s schedule, the Board’s indemnity condition, and the Inquiry Committee’s meeting schedule and decisions. Put another way, the Regulator says that even if there were delays in the accommodation process, the Regulator is reasonably certain to prove that, considering the matter as a whole, it took reasonable and practical steps to accommodate the Complainant.
[47] The Complainant says the two-year delay between when the duty to accommodate was triggered and when accommodation was actually provided is not reasonable by any measure. It appears that the accommodation ultimately provided by the Regulator in March 2021—an individualised skills assessment, outside the formal Board process, but which aimed to replicate key elements of that process—was similar to what the Complainant requested in April 2019.
[48] The Regulator did not provide a sworn statement or any other evidence from its staff or representatives. Some of its explanations for delays in the accommodation process are not supported by the evidence before me. For example, the Regulator suggests it could not have agreed to an individualised skills assessment sooner due to delays in getting the Board’s approval. But there is no evidence that Regulator requested or received approval from the Board before it modified the parts of the consent order regarding the skills assessment. The consent order was between the Complainant and the Regulator; it does not appear that the Board’s input was required in order to change the consent order.
[49] The Regulator provided minutes from a meeting of the Investigation Committee, which say the individualised skills assessment, in March 2021, would take place using published Board protocols, and invigilators who had previous invigilation experience with the Board, but “in a private setting instead of through the [Board]”. The minutes do not suggest that the Regulator needed the Board’s approval to do this.
[50] The Regulator suggests that the Complainant contributed to delays in the accommodation process, but this submission is also unsupported by the evidence before me. The Regulator says the Complainant had an obligation to cooperate with its attempts to accommodate him, and he expected a “perfect solution” rather than a reasonable accommodation. But all the evidence shows he cooperated promptly with everything the Regulator asked him to do, including providing medical information from his own doctor, attending the IME, and registering for Board assessments. There is no evidence that he was less than fully engaged in the accommodation process. To the contrary, it appears that he and his counsel took every opportunity to move the process forward.
[51] The Regulator says the Complainant sought to have the Regulator forego standardised testing altogether in favour of an individualised assessment, and this would have required the Regulator to compromise its standards related to public safety. It says it ultimately agreed to an individualised assessment due to delays in the Board assessment schedule caused by the pandemic. Due to those delays, what initially seemed to be a reasonable accommodation—accepting the Board’s indemnity condition and giving the Complainant another opportunity to complete the Board assessment, this time with the accommodations recommended in the IME—turned out to be unavailable within a reasonable time frame.
[52] I accept that the Regulator is reasonably certain to prove it had no control over the Board’s assessment schedule, or the cancellation of Board assessments due to the pandemic. I also understand that departing from the Regulator’s normal process of relying on Board-administered assessments would require careful consideration to ensure any alternative would satisfy the Regulator’s obligation to protect the public. But it is difficult to reconcile the Regulator’s argument that an individualised assessment would have required it to compromise its safety standards with the fact that it eventually agreed to such an assessment, apparently without compromising those standards.
[53] There may be reasonable explanations for some of the delays in the accommodation process, including: the Regulator’s need to obtain medical information to understand and assess the Complainant’s request for accommodation; the Regulator’s customary reliance on the Board to evaluate clinical skills, and its need for time to consider making an exception to that practice; the Board’s assessment schedule; and the Regulator’s need for time to consider whether it could amend the consent agreement while satisfying its obligation to protect the public.
[54] The effects of the pandemic also explain some of the delay in the accommodation process, but the Complainant initially requested accommodation over a year before the pandemic began. The Regulator has not pointed to any evidence that could explain the delay between the date when the Regulator received the Complainant’s psychiatrist’s recommendation for an IME, in May 2019, and the date scheduled for the IME, almost four months later. Even if it was reasonable for the Regulator to require an IME, on the evidence before me, it appears the IME was scheduled without consulting the Complainant, and without attempting to find an earlier date. Nor has the Regulator explained the delay between the date when the Regulator received the IME report and the date when it decided to indemnify the Board, almost two months later. It appears the results of the IME were the basis for this decision, which was a pre-condition for the Complainant to re-attempt the Board assessment.
[55] This period, between the psychiatrist’s recommendation for an IME and the Regulator’s decision to indemnify the Board, turned out to be crucial. It appears that, but for the Regulator’s delays during this period, the Complainant may have been able to register for the December 2019 Board assessment, in which case the subsequent delay due to the pandemic might have been avoided.
[56] The Regulator’s conduct must be assessed based on what it knew at the time, and not with the benefit of hindsight, and the pandemic was obviously unanticipated. But I must still consider the lack of any evidence that could explain the Regulator’s delay in scheduling the IME, or its delay in acting on the results of the IME. The Tribunal has recognised that the accommodation process necessarily takes time: Graham v. Richmond School District No. 38, 2005 BCHRT 520 at para. 42. But in my view, the fact that these things take time does not account for an unexplained delay of several months, while the Complainant awaited the next step in the accommodation process.
[57] Considering the matter as a whole, I am not persuaded that the Regulator is reasonably certain to prove its conduct during the accommodation process was reasonable. The timeliness of an accommodation process is an essential part of its reasonableness: Bowker at para. 56. I consider the following factors are relevant to whether the Regulator accommodated the Complainant in a timely way:
a. The evidence suggests the Complainant was fully engaged and cooperative throughout the accommodation process, and was not responsible for any of the delays;
b. The Regulator has provided no explanation for a crucial part of the delay, between the date when it received the Complainant’s psychiatrist’s recommendation for an IME and the date when it acted on the results of the IME;
c. Almost two years passed between the date when the Complainant first requested an individualised skills assessment and the date when the assessment took place;
d. The Regulator has not explained why it could offer the Complainant an individualised skills assessment, without undue hardship, in March 2021, but not any sooner.
[58] I agree with the Complainant’s submission that a hearing is required to review the Regulator’s explanations for delays in the accommodation process, and determine whether the Regulator fulfilled its duty to reasonably accommodate the Complainant.
IV CONCLUSION
[59] I grant the Complainant’s application to limit publication of any information that could identify him or the Regulator, on the terms described above.
[60] I dismiss the Regulator’s application to dismiss the complaint. The complaint will proceed to a hearing.
Andrew Robb
Tribunal Member