Test case profile
Access to remedies under the Human Rights Code
In 2015, LAO funded the joint intervention by the Mental Health Legal Committee (MHLC) and the HIV & AIDS Legal Clinic Ontario (HALCO) in the judicial review of K.M. v Kodama before the Ontario Divisional Court.
A transgender man, K.M., applied to the Human Rights Tribunal of Ontario alleging that, while providing medical services, Dr. Kodama had discriminated against him. Prior to this application, K.M brought a complaint to the College of Physicians and Surgeons, which found the doctor hadn’t intentionally treated the patient in a discriminatory manner.
Dr. Kodama asked the Tribunal to dismiss K.M.’s human rights application on the grounds that the College had already dealt with the substance of the application.
LAO provided support for MHLC and HALCO’s motion to intervene because both parties provide a unique perspective to this case given the areas they work with—specifically, communities which interact with the medical profession. As intervenors, they argued that making a professional complaint and seeking personal human rights remedies before the tribunal were two different processes for two different purposes.
The Divisional Court upheld the Human Rights Tribunal of Ontario’s decision to allow human rights applications to proceed despite the fact that a complaint had already been made to the College.
“Health professionals and police associations claimed that professional conduct complaints closed the door on human rights applications arising from the same facts, regardless of the outcome of the complaint. Consequently, members of marginalized groups were being caught unaware.
The intervention by the Mental Health Legal Committee and HALCO focused on the vastly different purposes of professional complaints and human rights applications and the limited role complainants have in the professional discipline process, contributing to a successful outcome. Legal Aid Ontario’s test case funding made the intervention possible.
By requiring human rights respondents to prove the professional complaint process dealt with all aspects of the case, the Divisional Court has promoted access to justice. Victims of discrimination will not be forced to choose between protecting the public by making a professional complaint and seeking a personal remedy for breaches of their human rights.”
— Marshall Swadron, Mental Health Legal Committee
“We strongly supported the Tribunal’s decision to hear the complaint and made our position clear to the Divisional Court when the case was heard in April 2015. We were extremely fortunate and grateful to team with Marshall Swadron and Mercedes Perez of Swadron Associates, Barristers & Solicitors, for this intervention.”
—Ryan Peck, Executive Director, HALCO