Administrative law – Decisions of administrative tribunals – College of Nurses – Human Rights Tribunal – Nurses – Disciplinary proceedings – Public interest – Human rights complaints – Discrimination – Disability – Duty to accommodate – Judicial review – Appeals – Investigations – Standard of review – Correctness – Compliance with legislation – Privative clauses
College of Nurses of Ontario v. Trozzi,  O.J. No. 4744, 2011 ONSC 4614, Ontario Superior Court of Justice, October 20, 2011, J.R.R. Jennings, D.R. Aston and T.R. Lederer JJ.
Ms. Trozzi applied for registration to Applicant College of Nurses of Ontario (the “College”). She sought registration as a Registered Nurse (RN) and as a Registered Practical Nurse (RPN) after she was diagnosed with fibromyalgia and depression. She completed all mandated testing successfully, although she received accommodation in the written examinations. The registrar of the College then referred her application to the registration committee of the College (the “Committee”) for her registration as a RN. In August 2004, the Committee decided to impose several conditions relating to her future medical treatment. Ms. Trozzi accepted these conditions.
In December 2004, the Committee decided to impose the same conditions for her registration as a RPN. This time, Ms. Trozzi decided to appeal the Committee’s decision to the HPARB. She asserted that she was being discriminated against. Before the HPARB made its decision, Ms. Trozzi filed a complaint with the Ontario Human Rights Commission (OHRC) alleging discrimination against the College.
In November 2006, the HPARB dismissed Ms. Trozzi’s requested review. The HPARB concluded the conditions were “reasonable and within the proper mandate and responsibility of the College” and that the College “discharged its duty to accommodate Ms. Trozzi on account of her disability”. Ms. Trozzi did not appeal this decision. Subsequently, in 2007, the College received additional medical reports and removed all the conditions attached to Ms. Trozzi’s RN and RPN licenses.
In June 2008, a new provision of the Ontario Human Rights Code (section 45.1) came into force; that provision states “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”. In April 2009, the College applied to the Ontario Human Rights Tribunal (the “Tribunal”) to have Ms. Trozzi’s complaint dismissed. The application was not successful and the College filed this application for judicial review.
The majority of the court first concluded that the College’s application for judicial review was not premature since the issues to be decided were not dependent on the evidence yet to be lead in the human rights proceeding. The majority then decided that the standard of review was correctness on this jurisdictional issue.
The majority held that the Tribunal erred for two reasons. First, the Tribunal failed to take into account the HPARB’s specialized expertise and public protection mandate. Second, the Tribunal’s reasons indicate that it was actually asking whether the HPARB “adequately” addressed Ms. Trozzi’s claims and was using its own yardstick to measure that. The majority held that the Tribunal’s decision should be quashed on this basis.
The minority decision (concurring in the result) focused on the interpretation and application of section 45.1 of the Ontario Human Rights Code. The Tribunal needed to decide whether the HPARB came to a suitable or proper decision about the extent of the accommodation provided. The Tribunal did not address this question when considering section 45.1. Instead, the Tribunal focused on the analysis undertaken by the HPARB, which it was not empowered to do. The minority quashed the Tribunal’s decision.
In the result, the Tribunal’s decision was quashed and Ms. Trozzi’s complaint to the OHRC was dismissed.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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