Access to remedies under the Human Rights Code

On February 13, 2015 HALCO, jointly with the Mental Health Legal Committee, was granted intervener status in the upcoming judicial review of K.M. v. Kodama before the Ontario Divisional Court.

In April 2015, the Court will hear arguments about whether a human rights complaint should be dismissed when a decision has already been made by the College of Physicians and Surgeons (the “College”) in a complaint about doctor conduct. We convinced the court that this case will have an impact on our clients and that we will be able to provide a helpful perspective to the court. It will be our opportunity to tell the court why patients should not have to choose between taking action against a doctor for individual compensation or complaining to the College that disciplines and regulates doctors.

A transgender man, referred to anonymously as “K.M.”, complained to the College alleging that Doctor Kodama had made discriminatory comments. The College’s Investigation and Complaints Review Committee completed an initial investigation and found that there was “some degree of miscommunication” but that there was no “independent information” that the doctor had “intentionally treated” the patient in a “discriminatory manner.”

K.M. then applied to the Human Rights Tribunal of Ontario (the “Tribunal”) asking for financial compensation and other remedies for discrimination under Ontario’s Human Rights Code. The doctor asked the Tribunal to dismiss K.M.’s human rights application on the grounds that the same issue had already been decided by the College. The Tribunal refused the doctor’s request and made it clear that the human rights complaint can go forward.

The doctor has asked the Court to review the Tribunal’s decision before the Tribunal goes forward with the full hearing of the discrimination application. We strongly support the Tribunal’s decision to hear the complaint and we will make our position clear to the Divisional Court when the case is heard in April 2015.  We are extremely fortunate and grateful to team with Marshall Swadron and Mercedes Perez of Swadron Associates, Barristers & Solicitors, for this intervention.


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