Monthly Archives: October 2020

Nunatsiavut Government v Newfoundland and Labrador, 2020 NLSC 129

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The Court granted the Nunatsiavut Government declaratory relief in a dispute over the sharing of mineral taxation revenue from mining in Voisey’s Bay, Labrador under a Land Claims Agreement. These declarations clarified the 5% entitlement of the Nunatsiavut Government, that the provincial government should not be deducting certain costs incurred by the developer outside the Labrador Inuit Settlement Area, and that the provincial government breached its fiduciary duty in failing to provide adequate information to the Nunatsiavut Government regarding its negotiations with the developer.  

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The Inuit have been resident in Labrador since time immemorial. Traditionally they pursued hunting, fishing, whaling, sealing and gathering activities. The Inuit still have a heavy reliance on these traditional pursuits. Lithic materials were quarried to make stone implements such as harpoon heads and projectile points for arrows and spears. Soapstone was used for carving domestic items such as lamps and cooking vessels. Today many Inuit artists and craftspeople rely upon the quarrying of lithic materials to create sculptures and carvings.

The Labrador Inuit Association was formed for the purpose of negotiating the Labrador Inuit Land Claims Agreement [“Land Claims Agreement”]. It was ratified by all three levels of government: Canada, the Province of Newfoundland and Labrador and Nunatsiavut. The Land Claims Agreement is recognized as a modern-day treaty and came into force in 2005. The Labrador Inuit Association was replaced by the Nunatsiavut Government, which has the responsibility, on behalf of the Inuit, to implement the Land Claims Agreement. The Land Claims Agreement is a constitutionally protected modern treaty under s 35 of the Constitution Act, 1982. In case of conflict the provisions of the Land Claims Agreement prevail over federal and provincial legislation.

Voisey’s Bay is located in northern Labrador. The area was traditionally used by the Inuit in hunting, fishing and gathering activities. The Inuit’s Aboriginal interest in Voisey’s Bay was substantially affected by the Province declaring that the area was not available for selection by the Inuit once it learned that a world class nickel deposit lay beneath the surface. The Province’s de facto assumption of control over the area, and the successful negotiation of the Land Claims Agreement including a chapter relating to Voisey’s Bay, gave the Province responsibility for the management, calculation and disbursement of the Inuit Revenue share. In doing so, the Province owes the Inuit a duty of loyalty, good faith and full disclosure in the discharge of its obligations.

The Inuit negotiated under the Land Claims Agreement, and were granted, the right to be consulted by Canada and the Province in a number of areas including the Voisey’s Bay chapter. Under section 8.6.2 of the Land Claims Agreement the Province has a specific duty to consult with the Nunatsiavut Government prior to deciding an application for a permit or issuing an order pertaining to the Voisey’s Bay Project or to any other work or activity in the Voisey’s Bay Area. The duty to consult also exists outside the terms of the Land Claims Agreement. As explained by the Supreme Court of Canada, the duty to consult is imposed as a matter of law, irrespective of the parties’ “agreement”. It does not “affect” the agreement itself. It is simply part of the essential legal framework within which the treaty is to be interpreted and performed (Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 [“Little Salmon”]).

The historic treaty between the Inuit and Newfoundland and Labrador is not a commercial contract, and should not be interpreted as one (First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58). It is a nation to nation agreement that deserves to be interpreted in a generous manner. It is an agreement that must be considered having regard to the treaty text as a whole and with a view to the treaty’s objectives.

The objective of modern land claims agreements is to bring about a reconciliation between the competing interests of the affected Aboriginal Peoples and the Crown. The establishment of a positive, long-term relationship is in everyone’s best interests (Little Salmon). To that extent, the terms of the modern treaty must be interpreted in a fashion that is sui generis. The honour of the Crown gives rise to a fiduciary obligation when the Crown assumes discretionary control over a specific or cognizable Aboriginal interest. The Crown’s fiduciary obligations include the fiduciary duties of loyalty, good faith and full disclosure (Williams Lake Indian Band v Canada (AAND), 2018 SCC 4).

Please see the Telegram link for news coverage regarding this case: https://www.thetelegram.com/news/provincial/an-expensive-loss-502108/

Temagami First Nation v Presseault, 2020 FC 933

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The Court dismissed an application for judicial review of an adjudicator’s jurisdictional decision with respect to the Canada Labour Code. The adjudicator did not err in concluding that a claim for unjust dismissal against an on-reserve daycare fell within the jurisdiction of the Code given that the daycare was functionally integrated with the First Nation. 

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In 1998, the Temagami First Nation [“TFN”] hired Tammy Presseault, to prepare its proposal to the Government of Canada for funding under the Aboriginal Head Start on Reserve program. The funding helped establish a daycare to provide childcare services on TFN territory. Ms. Presseault worked with the daycare from 2011 until her dismissal in 2017. Following the termination of her employment, Ms. Presseault filed a complaint of unjust dismissal under the Canada Labour Code [“Code”]. The TFN requested that the Adjudicator dismiss Ms. Presseault’s complaint on the grounds that her employment with TFN is a matter within provincial jurisdiction, not federal jurisdiction.

In 2019, the Adjudicator found that the federal government had direct jurisdiction, or in the alternative, derivative jurisdiction over the labour relations of the daycare. He applied the two-stage analysis outlined by the Supreme Court of Canada in NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, 2010 SCC 45 [“NIL/TU,O”]. He further relied on Canada (AG) v Munsee-Delaware Nation 2015 FC 366 [“Munsee-Delaware”] to conclude that the NIL/TU,O functional test must be applied to the governance functions of First Nations and their Councils in order to determine whether the entity’s labour and employment relations come under federal or provincial regulation. A functional assessment is to be undertaken to consider whether an employee’s role is concerned with the administration and governance of a First Nation or Band Council. If so, they fall under federal jurisdiction since the administration of a First Nation is a federal undertaking (Munsee-Delaware).

The Adjudicator concluded that the dominant character of the daycare’s operation was integral to the First Nation as a federal undertaking and that the Daycare is an indivisible and integrated operation. Further, the Adjudicator stated that provincial jurisdiction over the labour relations of the Daycare would impair the core of federal jurisdiction over the governance function of the TFN.

The TFN seeks judicial review of the Adjudicator’s decision that concluded that Ms. Presseault’s claim for unjust dismissal was within the jurisdiction of the Code. This Court dismisses the judicial review. The Adjudicator did not err in applying the appropriate test or in his consideration of the facts to determine that the unjust dismissal claim was within the jurisdiction of the Code. The Court determined that the Adjudicator identified and applied the proper test and reasonably assessed the specific factual matrix to conclude that the nexus of reporting and the control exercised caused the daycare to be functionally integrated with the TFN. Although the TFN takes issue with some of the facts considered by the Adjudicator, the Adjudicator reasonably balanced all of the facts put before him.

Ms. Presseault’s position with the daycare is functionally integrated into the general administration and governance of the TFN (Munsee-Delaware). There is no basis for this Court to interfere with the Adjudicator’s conclusion on the functional analysis. Having concluded under the functional test that the daycare was a federal undertaking, the Adjudicator was not required to undertake a derivative analysis. However, he did consider the derivative analysis and reached the same conclusion as with the functional analysis.

The derivative analysis asks whether provincial regulation of an entity’s labour relations impairs the core of the relevant head of power (NIL/TU,O). The derivative analysis also asks whether activities are integral to a federal undertaking in a way that justifies imposing exceptional federal jurisdiction for the purposes of labour relations (Tessier Ltée v Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23). Namely, that the dominant character of the operations of the daycare is integral to the TFN as a federal undertaking.

The Adjudicator’s findings of fact are owed deference. The finding that Ms. Presseault’s position with the daycare is integrated into the governance and administration function of the TFN is reasonable and supported by the undisputed evidence. The Adjudicator did not err in concluding that the federal government also has derivative jurisdiction on the facts of this case.

Grey v Whitefish Lake First Nation, 2020 FC 949

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The Court dismissed an application for judicial review of an arbitrator’s decision to dismiss an election appeal. The Applicant unsuccessfully argued a reasonable apprehension of bias and reviewable substantive errors in that decision. 

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An Election Appeal Arbitrator [“Arbitrator”] was retained by Whitefish Lake First Nation [“WLFN”] for a 2018 general election [“Election”]. He was to supervise and ensure that any appeals from the Election were conducted in accordance with the Customary Election Regulations [“Regulations”].

The Election was held to elect candidates to four band councillor positions and one candidate to the position of chief. The Applicant unsuccessfully ran for election as a councillor. Albert Thunder was elected as Chief. Although the Applicant did not seek election as Chief, he appealed the results of the election of Albert Thunder as permitted by s 16.2 of the Regulations. The Arbitrator denied the appeal and upheld the election of Albert Thunder as Chief.

In 2019, the Applicant commenced this application for judicial review challenging the decision of the Arbitrator. The primary basis of the application is the assertion that his Election Appeal was tainted by a lack of independence, impartiality and a reasonable apprehension of bias on the part of the Arbitrator. The Applicant asserted three allegations, that in context altogether, would collectively meet the test for reasonable apprehension of bias.

The threshold for a finding of a reasonable apprehension of bias is a high one, and the burden on the party seeking to establish a reasonable apprehension is correspondingly high (Oleynik v Canada (AG), 2020 FCA 5). The Applicant asserted in one of the allegations that the appointment process of the Arbitrator by the WLFN lacked independence and was procedurally unfair, because it was the executed by the WLFN Council. Section 7.1 of the Regulations specifically authorizes the WLFN Council to appoint an Election Appeal arbitrator, which must be done by way of a band council resolution. The Supreme Court of Canada has held that it is well established that, absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute (Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52). This principle is equally applicable in the context of administrative decision making such as First Nation election regulations (Sturgeon Lake Cree Nation v Hamelin, 2018 FCA 131). The appointment of the Arbitrator by WLFN Chief and Council, along with two other allegations in this case, does not give rise to a reasonable apprehension of bias.

Although the Applicant also makes submissions asserting errors on the part of the Arbitrator pertaining to his decision and his weighing of the evidence, s 16.20 of the Regulations clearly precludes challenges on that basis, restricting challenges on judicial review to matters of procedural fairness. Accordingly, it is not open to the Applicant to challenge the Arbitrator’s decision on the merits.

R v Turtle, 2020 ONCJ 429

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The Court held that the unavailability of an intermittent sentence for on-reserve members of the Pikangikum First Nation, and those similarly situated, for mandatory minimum sentences under s 255 of the Criminal Code, breaches s 15 of the Charter. Alternative arguments under ss 7 and 12 of the Charter were dismissed. 

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Six band members of the Pikangikum First Nation have pled guilty to a drinking and driving offense that, in their circumstances, carries with it a mandatory minimum jail sentence of not more than ninety days. Each of the accused live, together with their young children, on the First Nation Territory of Pikangikum.

The parties to these proceedings agree it would be open to each of these accused, in the normal course, to request an order of this Court allowing them to serve their sentences intermittently. The challenge for these defendants is that the Pikangikum First Nation Territory is an isolated fly in community hundreds of kilometers from the nearest district jail in the City of Kenora and it is financially and logistically prohibitive for them to travel to and from there, from weekend to weekend, at their own expense, to serve out their sentences.

Faced with this obstacle, the defendants each brought applications alleging that their inability to mitigate the effect of a mandatory jail sentence because of the practical unavailability of an intermittent sentence violates their right to equal protection under the law, constitutes cruel and unusual punishment and an abuse of the court’s process. Given the common ground of these applications, the desirability of using resources efficiently and with the consent of the parties, this Court has directed these applications be heard in one joined proceeding.

The question at the heart of this joint application is whether particular Criminal Code provisions of general application have an unconstitutional impact on Pikangikum First Nation residents, their place in Canadian confederation and what it means for them to be equal under the law. The recognition that First Nations, like Pikangikum, lived in distinctive societies, that their members are described in s 35(2) of the Constitution Act, 1982 as “peoples” who have been recognized by our highest Court as holders of community based rights, by virtue of their connection to their land, strongly suggests that the defendants, as on-reserve members of the Pikangikum First Nation, belong to a group enumerated in s 15 of the Charter, namely, a nation.

Being deprived of the opportunity to serve a jail sentence intermittently because of their status as on-reserve band members of the Pikangikum First Nation, constitutes the deprivation of a legal benefit. It also creates a distinction in law between themselves and other members of the general public. Most of the offending behavior in Pikangikum, like the offences the defendants have pled guilty to, is related to alcohol or solvent abuse. Pikangikum First Nation reserve is, and always has been, an ostensibly dry community. The effects of alcohol abuse in Pikangikum are rampant and have become devastating.

Mandatory minimum sentences under s 255 of the Criminal Code, breaches s 15 of the Charter. Any s 1 justification must fail at the minimal impairment stage of the analysis given this Court is deprived of any other sentencing options for the defendants by virtue of their facing mandatory sentences. The deleterious effects of this constitutional violation are egregious and cannot be outweighed by the salutary effect of a uniform sentencing regime (R v Sharma, 2020 ONCA 478). Alternative arguments under ss 7 and 12 of the Charter are dismissed.

Pikangikum and other Treaty #5 nations had traditional means of keeping the peace in their communities that pre-date contact with Europeans by thousands of years. Pikangikum’s integration into Canadian confederation is a textbook example of the negative effects of colonialism on an isolated hunter-gatherer society. The people of Pikangikum were a healthy, self-sufficient band of families, who, in the lifetime of the current Chief’s grandmother, became the suicide capital of the world. The legal regime the Court has been asked to consider in this application, though neutral on its face, treats the people of Treaty #5 as second-class citizens. The Government is not fulfilling its treaty obligations and young Indigenous people are taking their lives in shocking numbers.

R v GH, 2020 NUCJ 21

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The Chief Justice of the Nunavut Court of Justice dismissed an application for a state-funded Gladue report. The Court cautioned that a Gladue report writer from outside the territory may not be adequately familiar with Nunavut’s unique circumstances and resources, and Inuit court workers can provide much of the necessary information, as can the predominately Inuit probation officers working in Nunavut. The Court left it to the Government of Nunavut to determine whether a program for full Gladue reports ought to be created. 

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The Applicant requests that the Court order the production of a Gladue report. He suggests that formal Gladue reports are necessary if this Court is to apply the remedial provisions of section 718.2(e) of the Criminal Code in the manner and spirit directed by the Supreme Court of Canada (R v Gladue, [1999] 2 CNLR 252 [“Gladue”]; R v Ipeelee, [2012] 2 CNLR 218).

In Canada, judges are required to consider the circumstances of Indigenous offenders who are before them to be sentenced. Indigenous offenders have the right (unless it is expressly waived) to the presentation of Gladue information and application of Gladue principles at their sentencing hearing. However, they do not have the right to the production of a publicly funded Gladue report in advance of sentencing.

In many jurisdictions across Canada there are Gladue programs in which independent and knowledgeable writers interview offenders and other community members, producing Gladue reports that educate sentencing judges. Nunavut is not one of those jurisdictions. To date, the Government of Nunavut has not implemented a program to connect Indigenous offenders with knowledgeable Gladue writers. Nothing formally prevents an offender in Nunavut from funding the production of a Gladue report privately, but this almost never occurs due to the associated cost.

Because Nunavut lacks a publicly funded Gladue writing program, Gladue information about Indigenous offenders in Nunavut usually comes before the court via Defence submissions, pre-sentence reports, and occasionally comments directly from offenders. Counsel for the Applicant argues that these sources of information are insufficient and that a Gladue writer would provide a qualitatively superior overview of the systemic factors that have played a role in bringing the offender before the court. Gladue writers are typically either members of the Indigenous communities in which they serve or they have strong social and professional connections to those communities. Because there is no Gladue writing program in Nunavut, there are no Gladue writers here with those same community connections that are so key for southern Gladue writers. Pre-sentence reports, however, are prepared by probation officers, many of them Inuit living in communities in which they serve.

Non-Inuit legal professionals in Nunavut are not without access to knowledgeable cultural and community resources. The Court will leave this discussion to more knowledgeable players within the Legal Services Board of Nunavut and the Government of Nunavut. The Court cautions against the assumption that a Gladue writer experienced in serving First Nations and Métis communities will easily translate those skills to an Inuit context. A pan-Indigenous approach to government programming is ineffective and does not meet the specific needs of Inuit. Recommendation 16.28 of the National Inquiry into Missing and Murdered Indigenous Women and Girls Final Report, notes that this failure to provide Inuit-specific services cripples Gladue principles.

When the Government of Nunavut implements a Gladue report writing program employing empathetic peers based in Nunavut communities as writers, the Court will be pleased to trust those report writers to fully enlighten the court. The colonial court system in Nunavut can only benefit from further and better cultural and historic information about the individuals who appear before it and will continue to rely on the expertise of Indigenous Court Workers, Inuit elders, resident counsel, and resident probation officers.

Bruno v Samson Cree Nation, 2020 ABQB 504

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The Court certified a class action against the Samson Cree Nation for members from whom payment of per capita distributions, special pays, and interest were withheld during litigation and disputes over members added by virtue of Bill C-31 in 1987. The majority of common issues were approved as sought, or as modified by the Court or agreed to by counsel, and can proceed to trial. 

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For most of its history, the Indian Act based entitlement to Registered Indian status and band membership on descent through the male parent. This system of eligibility for Indian registration based on descent through the male line was in effect until Bill C-31 was passed in 1985, in response to the equality commands of the Charter. Women who lost their Registered Indian status before 1985 for “marrying out” were restored to status by Bill C-31. These women, and any children they had with their non-Indian husbands, could be registered as Indians pursuant to s 6 of the Indian Act, enacted by Bill C-31.

Before Bill C-31, the Government of Canada maintained all Band lists, and determined Band eligibility on the basis of its statutory and administrative rules about parentage and marriage. After Bill C-31, this dual role for Canada continued with respect to many Bands. However, Bill C-31 also gave Bands the option of taking control of their membership by establishing their own membership codes.

The Plaintiff, Bonnie Lee Bruno [“Bruno”], is a member of the Samson Cree Nation [“Nation”]. Her name was added to the Band List of the Nation maintained by the Minister of Indian Affairs and Northern Development [“Minister”], under the provisions of Bill C-31. Previously enfranchised Indian women and their children became members of Indian Bands on lists administered by the Minister, unless First Nations developed band membership rules approved by the Minister on or before June 28, 1987. The Court found that, on the unchallenged evidence before it, that this was not done in this matter, thus giving primacy to the list maintained by the Minister on which the Plaintiff, and allegedly others in the class, had status effective June 29, 1987. 233 individuals were added as at that date.

Prior to the passage of Bill C-31, there was considerable controversy within many First Nations over, among other things, questions over whether the women who had “married out” should be accepted back into the community and as Band members. After Bill C-31 came into effect, there were numerous challenges before the courts regarding Band membership and the equality rights issues raised by the history of enfranchisement and the attempted solution of Bill C-31.

This class proceeding relates to a claim of class members from whom, after they were added to the Band List of the Samson Cree Nation [“Nation”] by virtue of Bill C-31, the Nation withheld payment of per capita distributions and Special Pays, and interest, from 1988 to 1995 per the Plaintiff, and lesser or greater time periods as to other class members. Beginning in June 1987, the Plaintiff and other individuals’ names were entered onto the Samson Nation Band List maintained by the Minister pursuant to Bill C-31, but that the Class Plaintiffs only became members of Samson Nation about 1995 when Samson recognized and admitted them as members of the Samson Nation.

The first criterion for certification is that the plaintiff’s pleading discloses a cause(s) of action. No evidence is required, but rather the facts, as pleaded, are assumed to be true (Hunt v Carey Canada, [1990] 2 SCR 959). The pleading is to be read generously (Cloud v Canada (2004), 73 OR (3d) 401 (CA)). The standard test for unjust enrichment is: an enrichment of the defendant; a corresponding deprivation of the plaintiff; and the absence of a juristic reason for the enrichment (Garland v Consumers’ Gas Co, [2004] 1 SCR 629).

At this stage, the Plaintiff merely needs to allege an arguable cause of action, which she has done. Proof of the allegation is for trial. The Court finds that a cause of action for unjust enrichment has been established for the purpose of certification. It is determined that this is an appropriate case to proceed by way of a class proceeding, and the majority of 16 common issues and 4 subclass common issues are approved as sought, or, in some cases, with modification.

R v Hilbach, 2020 ABCA 332

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The Court of Appeal upheld a finding that the mandatory five-year prison sentence for robbery while using a prohibited firearm breaches s 12 of the Charter as cruel and unusual punishment. It fails to allow courts to account for mitigating factors and elevates principles of deterrence and denunciation to an extent that objectives of rehabilitation, the imposition of a just sentence, and special considerations for Indigenous offenders are lost. However, a sentence was varied based on errors, including an overemphasis of Gladue/Ipeelee factors. 

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Ocean Hilbach was convicted for committing a robbery while using a prohibited firearm, contrary to s 344(1)(a)(i) of the Criminal Code. Curtis Zwozdesky was convicted for using a firearm, as a party to the offence, in the course of two robberies contrary to s 344(1)(a.1) of the Criminal Code.

The mandatory minimum sentences were deemed grossly disproportionate to the fit and proper sentence to the appropriate sentence in other reasonably foreseeable applications of the law in both cases. As such, the mandatory minimums in those sections contravened s 12 of the Charter and were not justified under s 1 of the Charter, and therefore pursuant to s 52(1) of the Constitution Act, 1982, were declared unconstitutional and of no force and effect.

The Crown appealed both sentences, maintaining that the mandatory minimums set out in these Criminal Code sections are consistent with the provisions of the Charter, and the sentences imposed by the sentencing judges are unfit. The standard of review on a sentence appeal is highly deferential. An appellate court cannot modify a sentence “simply because it feels that a different order ought to have been made” (R v Lacasse, 2015 SCC 64).

The constitutional validity of legislation is a question of law subject to the standard of review of correctness (Housen v Nikolaisen, 2002 SCC 33; R v Malmo-Levine, 2003 SCC 74). Section 12 of the Charter provides that everyone has the right not to be subjected to cruel and unusual treatment or punishment. Each of the sentencing judges in these appeals correctly identified the stringent test as to whether a mandatory minimum sentence constitutes such cruel and unusual punishment (R v Smith, 1073 (SCR)). To be considered grossly disproportionate, the sentence must be “so excessive as to outrage standards of decency” such that Canadians “would find the punishment abhorrent or intolerable” (R v Ferguson, 2008 SCC 6).

The appeal with respect to Mr. Zwozdesky is dismissed. The Court determines that the sentences imposed on Mr. Zwozdesky were fit and proper. The appeal with respect to Mr. Hilbach, however, is allowed in part. The sentencing judge for Mr. Hilbach found that a fit global sentence for both charges would be two years less a day, acknowledging the relevant Gladue factors, his degree of responsibility, the need for denunciation and deterrence for the crimes committed while on probation and prohibited from possessing firearms, and recognizing that this was his first custodial sentence.

There is no doubt that the commission of robbery using a prohibited firearm is a serious violent offence with potentially grave consequences. There are aggravating factors of an already serious violent offence and Mr Hilbach’s moral culpability was high. However, he was young at the time, 19 years old, pleaded guilty to these offences, and expressed remorse for his crimes. He is a member of the Ermineskin Cree Nation, and there are significant Gladue factors to be considered.

The Court determined that the sentencing judge committed errors in principle by failing to put sufficient emphasis on aggravating factors and place sufficient weight on deterrence and denunciation, and overemphasizing Gladue/Ipeelee factors. The sentence of two years less a day is unreasonable and demonstrably unfit. Taking all of these factors into account, a fit and proper sentence for Mr Hilbach is three years’ imprisonment for the s 344(1)(a)(i) offence. However, given that a significant period of time has elapsed since Mr. Hilbach was sentenced and he has served his full original sentence, it is not in the interests of justice to re-incarcerate him at this time. The Court confirms the decisions of the sentencing judges that the mandatory minimum sentences in ss 344(1)(a)(i) and (a.1) of the Criminal Code are unconstitutional and of no force and effect.

 

AD-S v NMN, 2020 CanLII 67103 (ON HPARB)

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The Health Professions Appeal and Review Board of Ontario ordered the College of Physicians and Surgeons of Ontario Committee to conduct a further and adequate investigation into a complaint in which racial bias and profiling against a First Nations patient and her parents was alleged. The Committee overseeing complaints failed to recognize systemic anti-Indigenous bias in the health care system and the potential for conscious or unconscious racial/cultural bias and its existence in the medical setting, which is the appropriate lens for analysis of this complaint. 

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The Applicants took their seven-year old daughter to the Huntsville District Memorial Hospital Emergency Department where the triage nurse recorded complaints of pain upon voiding, lower abdomen pain, legs hurting, no fever or nausea. An active diagnosis of a suspected urinary tract infection [“UTI”] was made.

The Respondent assessed and examined the patient in the presence of her mother. The Applicants complaint had a number of concerns including that the Respondent did not acknowledge the patient’s parent or introduce herself, did domestic violence and sexual abuse screening in a high traffic area and ignored three requests to check the patient’s urine for a UTI before deciding on a vaginal examination. The patient was not provided a gown or blanket before being asked her to remove her clothing and the door was shut on the patient’s father. The Respondent raised her voice at both Applicants in front of their child and chose the most intrusive examination first, prior to checking urine for UTI among other issues.

In her response, the Respondent explained it is best practice to complete a history and physical before ordering tests to inform what investigations are necessary. Although triage nurses often order tests to speed up the process, a proper assessment by the physician is required. The Respondent stated that had she not done the vaginal exam and treated only the urine infection, she would have missed the yeast infection and irritation in the patient’s perineum which also needed to be treated. The Respondent addressed the Applicants’ allegations of racial discrimination by stating that regardless of race, it is her consistent practice to examine the genital areas of children with complaints of painful urination to look both for irritation and any sign of sexual abuse.

The Committee investigated the complaint and decided to accept a remedial agreement from the Respondent. In the remedial agreement, the Respondent acknowledges the need for education in reviewing guidelines for a paediatric genital examination, which would include gowning, and also in reviewing treatment of UTI in children, including the need for urine culture screening. The Committee stated its expectation that physicians communicate appropriately and sensitively with patients and their families, including those of a culture other than one’s own.

The Applicants now request that the Board review the Committee’s decision. Pursuant to section 33(1) of the Health Professions Procedural Code, the mandate of the Board in a complaint review is to consider either the adequacy of the Committee’s investigation, the reasonableness of its decision, or both. In conducting a complaint review, the Board assesses the adequacy of an investigation and reasonableness of a Committee decision in reference to its role and dispositions available to it when investigating and then assessing a complaint filed about a member’s conduct and actions.

The key issue for the Board was to determine whether the Committee was alive to the issue of discrimination as articulated by the Applicants so as to render their investigation adequate. Had the Committee framed its analysis by recognizing at the outset the potential for conscious or unconscious racial/cultural bias and its existence in the medical setting, the Committee would have demonstrated that it was alive to the Applicants’ essential complaint and would have provided the appropriate lens for the Committee’s analysis of the Respondent’s treatment of the child and the manner in which she chose to interact with the parents.

The Board found that, in not properly framing the true nature of the Applicants’ complaint, the Committee’s investigation is inadequate and should be re-investigated by the same or by another Committee who may come to a different conclusion on some or all of the aspects of the Applicants’ concerns. The Board returns this matter to the Committee for re-investigation. The Board requires the Committee to recognize the potential for racial/cultural bias at the outset and to analyze the Applicants’ allegations with this lens. If it considers it necessary, as well to obtain expert advice to assist it in understanding how cultural/racial bias may affect a physician’s conduct and actions, whether conscious or unconscious.