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Human Rights Advisory Services

Hutchinson v. Queen’s University, 2017 HRTO 326 (CanLII)

Summary

The applicant, Shirley Hutchinson, alleged that Queen’s discriminated against her because of disability when it refused to renew her contract for the 2015-2016 academic year. She also alleged that Queen’s discriminated against her when the University refused to assist her to transfer to another university in Ontario.

Applicant’s residency status from 2007 – 2013 is as follows: The applicant began her medical residency at Queen’s on July 1, 2007, until 2013. In addition to registering with the University, residents must also be granted privileges at a hospital, which means they are also employees of the hospital and the collective agreement covers them. The applicant’s status at Queen’s after June 2013 is a matter in dispute between the parties.

Every year, residents must register with the University, pay the annual fees, and are issued an appointment letter that must be modified every time the resident change their status. Dr. Ross Walker, Associate Dean of Postgraduate Medical Education at Queen’s, testified that letters of appointment are issued to residents whether their status in the program is active, suspended, or on leave. The University did not issue any letters of appointment to the applicant after June 30, 2013.

The University suspended the applicant in the Fall of 2011 after Hutchinson went on a leave of absence as of November 2011. An Academic Review Board (ARB) review the circumstances around the Applicant’s performance and status, and in February 2012 recommended that she be assessed by the Physician Health Program (PHP) of the Ontario Medical Association.  Lois Ross, a representative of the Professional Association of Residents of Ontario (PARO) who engaged in these conversations on the applicant's behalf, recommended Dr. Walker to reconsider the ARB recommendation. But on March 2012, the Applicant ultimately agreed to undergo the assessment by the PHP recommended by the ARB.

At the beginning of 2013 the PHP indicated that the assessors believed that the applicant would never be ready to return to her training program at Queen’s nor, in its view, would she be able to become fit for residency training in most sub-specialties of medicine and surgery. After these findings, Ms. Ross indicated that it was her understanding that the applicant would be applying for Long Terms Disability benefits since her disability precluded her from returning to Queen’s.

On March 2013, the ARB then recommended that the applicant’s suspension to be lifted if Hutchinson voluntarily withdrew from the residency program and went on an unpaid leave of absence for a maximum of six months, then after that period, she would be required to withdraw from the University. During this period, Ms. Hutchinson was insisting in transferring to another program, but Ms. Ross was very clear that the chances of getting support from Dr. Walker were very slim.

Dr. Walker and Ms. Ross met on March 18, 2013, to discuss the PHP report and the next steps for the applicant. They agreed that Hutchinson would not receive another appointment as of July 1, 2013, and she would apply for LTD benefits. Also, the University would permit the applicant to remain eligible for the group health insurance benefits. To do so, the applicant had to continue to enroll with the University to remain eligible for the group health benefits under her collective agreement with Kingston General Hospital. Regarding the transfer request, Dr. Walker said he did not have the authority to transfer or appoint residents to programs, and that due to a full disclosure policy, if another program contacted him, he would be obliged to share all information relating to the applicant’s experience in her residency program at Queen’s.

Ms. Ross reported back to the applicant about the results of the meeting, and the applicant never expressed any disagreement with what she and Dr. Walker agreed to in their meeting.

The applicant kept registering and paying tuition fees with the University for two more academic years. And on December 2014, she wrote to Dr. Walker asking to meet with him to discuss her options for finding a residency transfer position. Dr. Walker reviewed her resident file and refused to meet with her.

In June 2015, the applicant attempted to register online for the 2015-2016 year but was unable to log into the Queen’s registration page. The Postgraduate Medical Education Office decided to wave the registration fee for her and reiterate that the Applicant did not have a contract and that her connection to the University since 2013 has been for the sole purpose of ensuring continued access to her benefits.

The applicant’s understanding was that by maintaining her registration, Queen’s would negotiate a transfer for her to another residency program when she was ready to come off LTD.
 

Questions to be Determined and Findings

1. Should the Tribunal dismiss the Application as an abuse of process due to the agreement between Dr. Walker and Ms. Ross in March 2013? (YES)

2. Should the Tribunal dismiss the Application as untimely? (YES)
 

Reasoning

1. There is no need to address whether the Application should be dismissed on the basis of abuse of process because the applicant’s allegations from 2013 are untimely or, if they are timely, they do not amount to discrimination under the Code.

“Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident to which the application relates or a series of incidents, within one year after the last incident in the series. The Tribunal has found that there must be some thematic connection or nexus between incidents in order for them to be considered a ‘series of incidents’ within the meaning of s. 34(1) of the Code. A series cannot be comprised of incidents relating to discrete and separate issues. Generally, the Tribunal has not considered incidents to form part of a ‘series of incidents’ if there is a break of one year or more between incidents. Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9.” (p. 53)

The applicant’s allegations relating to events that occurred more than one year before she filed her Application in September 2015 do not constitute a series of events with any timely allegations. And, ultimately, the University did not make any changes to the applicant’s status in 2015.

“As noted above, as of the 2015-2016 academic year, the University ceased charging the applicant a registration fee. However, it was clear from the evidence at the hearing that nothing else changed with respect to the applicant’s registration. The applicant ceased to be a resident at Queen’s on June 30, 2013.” (p. 57)

2. The applicant was aware that her residency ended on June 30, 2013, for the following reasons:

(a) She had not received a letter of appointment since 2013.

(b) Ms. Ross had e-mailed the applicant following her meeting with Dr. Walker and confirmed that she would not be seeking to return to Queen’s. It also informed the applicant that she would have the option of continuing to register solely to maintain eligibility for group health benefits.

(c) In one of her e-mails to the Post Graduate Resident’s Office, the applicant herself referred to having “stopped being a resident” in 2013.

The University had no ongoing duty to accommodate the applicant since her residency with the University ended at the end of the 2012-13 academic year. Therefore, Dr. Walker was not obligated to provide assistance or meet with her. This refusal was not a breach of the Code.
 

Order

Application dismissed

“I have considerable sympathy for the applicant’s circumstances in this case. It is clear that the applicant has put considerable effort into moving forward with her career.” (p. 67)