Jerome v. DeMarco (No. 2), 1992 CanLII 14238

Ontario Board of Inquiry

Jerome Complainant

v.

Paul DeMarco Respondent

Date of Complaint: March 29, 1990 Date of Decision: March 12, 1992 Before: Ontario Board of Inquiry, H.A. Bassford Comm. Decision No.: 438

Appearances by: M. Kaye Joachim and Wanda Woodman, Counsel for the Commission Harvey Strosberg and Edward Ducharme, Counsel for the Respondent

PHYSICAL DISABILITY — dental treatment delayed and refused on basis of AIDS — AIDS defined as a physical disability — DISCRIMINATION — obtaining medical advice as reasonable cause for discrimination — safety risk to public — REASONABLE ACCOMMODATION — duty to accommodate short of undue hardship — reasonable accommodation as a defence to charge of discrimination — OCCUPATIONAL HEALTH AND SAFETY — safety implications of complainant's disability — INTERPRETATION OF STATUTES — definition of "equal," "handicap" and "service" — HUMAN RIGHTS — nature and purpose of human rights legislation

Summary: The Board of Inquiry finds that Dr. Paul DeMarco did not discriminate against Mr. Jerome when he delayed his dental treatment because Mr. Jerome has AIDS.

Mr. Jerome is 30 years old and a resident of Windsor. On March 29, 1990 he attended at the office of Dr. DeMarco for a scheduled dental check-up and cleaning. Mr. Jerome alleges that he was denied treatment or discriminated against with respect to treatment because of his handicap, that is, because he is a person living with AIDS.

The Board of Inquiry finds that AIDS is a handicap and that dental services are "services" within the meaning of the Ontario Human Rights Code.

However, the Board of Inquiry finds that Mr. Jerome was not denied treatment. The fact that he had AIDS was not known until Mr. Jerome arrived at the office for his appointment at 9:45 a.m. He was offered an appointment for cleaning at the end of the same day.

The Board of Inquiry considers whether the postponing of treatment constituted discrimination in this situation, and finds that it did not. The treatment was postponed for health reasons because it was necessary for Dr. DeMarco to do the cleaning himself rather than the hygienist doing it. Because of increased susceptibility to periodontal disease, persons with AIDS require deeper cleaning which may involve curettage and local anesthetic. This cannot be done by a hygienist.

Because Dr. DeMarco had previously scheduled appointments throughout the day, he was not available to do the cleaning himself until the end of the day.

The Board of Inquiry finds that no discrimination occurred.

Cases Cited

Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes, 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, 8 C.H.R.R. D/4210: 9

Barton v. New York (Comm. on Human Rights), 531 N.Y.S. 2d 979 (1988): 8

Biggs v. Hudson (1988), 1988 CanLII 8918 (BC HRT), 9 C.H.R.R. D/5391 (B.C.H.R.C.): 8

E. (S.T.) v. Bertelsen (1989), 1989 CanLII 9029 (AB HRC), 10 C.H.R.R. D/6294 (Alta. Bd.Inq.): 8

Fontaine v. Canadian Pacific Ltd. (1989), 1989 CanLII 137 (CHRT), 11 C.H.R.R. D/288 (Can.Trib.): 8

Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 3 C.H.R.R. D/781: 27

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 9

Whittacre v. Northern Dispensary (August 17, 1988), Complaint Nos. AU-00015021387 and GA-00023030687-DN (N.Y. Comm. on H.R.) [unreported]: 8

Youth Bowling Council of Ontario v. McLeod (1990), 1990 CanLII 6869 (ON CTGD), 14 C.H.R.R. D/120 (Ont. Div.Ct.): 29

Legislation Cited

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53

s. 1: 1

s. 8: 1

s. 9(1)(b)(i): 7, 10

s. 9(1)(c): 25

s. 10: 26

s. 16: 24, 29, 39

1This inquiry involves a complaint made by Mr. Jerome (the complainant) against Dr. Paul DeMarco (the respondent). The complaint, dated March 29, 1990, alleges discrimination in services on the basis of handicap, contrary to ss. 1 and 8 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, as amended. The relevant parts of the sections read as follows:

1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of . . . handicap.

8 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

I was appointed as a Board of Inquiry by the Minister of Citizenship, the Honorable Elaine Ziemba in accordance with s. 37 of the Code. The hearing took place over eight days, commencing by conference call on April 8, 1991, and concluding on December 11, 1991.

THE COMPLAINT

2There is considerable dispute between the parties as to significant facts, but the following are not contested. Mr. Jerome is 30 years old, and has been a resident of Windsor since September 1989. He was diagnosed as having AIDS in November 1988. Sometime in March 1990, Mr. Jerome called the office of Dr. DeMarco and arranged for an appointment for a cleaning and a check-up, which was scheduled for 9:45 a.m., March 29. At the time of making the appointment he volunteered no information about his medical condition, nor was he asked about it.

3When Mr. Jerome arrived for his appointment he was asked by Dr. DeMarco's receptionist, Ms. Carol Bump, to fill out a medical, dental and insurance history. He listed as medications which he was taking AZT-Q4H and Septra B.I.D. Ms. Bump reviewed the form, found she was unfamiliar with AZT, so took the form to Dr. DeMarco who was viewing X-rays in operatory number one. Dr. DeMarco asked if the patient had AIDS, to which Ms. Bump replied she did not know. He asked her to give him a minute. She went back to her reception area, and at that time asked Mr. Jerome why he was taking the listed medications. He replied that he had AIDS. A few minutes later Dr. DeMarco came out of the operatory to speak with Mr. Jerome, at which time Ms. Bump informed him that Mr. Jerome had said he had AIDS. Dr. DeMarco then asked Mr. Jerome into his office.

4There is dispute about the discussion which took place in the office. The position of the Commission is that Dr. DeMarco refused to proceed with Mr. Jerome's check-up and cleaning, and acted in a way "calculated to discourage Mr. Jerome from becoming a patient" (Transcript, v. 2, p. 2). The Commission argues that in so doing Dr. DeMarco denied Mr. Jerome equal treatment with respect to a service because of his handicap. Counsel for the respondent takes the position that Dr. DeMarco offered to proceed with the check-up, but postponed the cleaning until the last appointment of the day, at which time he would have personally performed the cleaning. The Commission argues that even if the respondent's interpretation of the events is held to be correct, the deferral would still be discrimination under the Code. The respondent argues that the postponement was for good and sufficient reasons and did not constitute discrimination. There are thus two prongs to the Commission's case to be considered in determining whether Dr. DeMarco discriminated under the Code. First, was there a refusal to treat Mr. Jerome, or was there an offer to treat at the end of the day; second, was there a denial of equal treatment because of handicap even if there were an offer to treat at the end of the day?

AIDS AS HANDICAP

5There is a threshold consideration preliminary to the above questions, however. That is whether unequal treatment with respect to dental treatment because of AIDS would properly count as unequal treatment with respect to services because of handicap, and so fall within the scope of the Code. First, counsel for the respondent conceded that dental services are services under the Code, and this decision will proceed upon that assumption. Second, counsel for the respondent did not argue that AIDS is not a handicap, though he reserved any rights he might have if the matter goes elsewhere. Given this, I shall presume that the Commission's argument that AIDS is a handicap is sound. However, since this is the first case under the Code dealing with AIDS as a handicap, I shall review the argument here. I should like to thank Ms. Joachim, counsel for the Commission, for the very useful consolidation of case law presented to me.

6Dr. J. Hardie, who appeared as an expert witness succinctly defined AIDS or Acquired Immune Deficiency Syndrome as "the opportunistic infections and neoplasms that are the result of destruction of the human immune cellular system by infection from the Human Immune Deficiency Virus (J.M. Hardie, "A.I.D.S. and Dentistry" Exhibit No. 22, p. 1). The immune systems of people with AIDS is [sic] attacked by the human immunodeficiency virus and they are generally left incapable of defending themselves from these opportunistic infections and neoplasms. It is a very serious disease, being both debilitating and life-threatening.

7The Code, in s. 9(1)(b)(i) partially defines handicap as "any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness . . ." Would a person with AIDS fall under this definition?

8Counsel for the Commission presented three Canadian cases and three American cases wherein AIDS was held to be physical disability or handicap [Biggs v. Hudson (1988), 1988 CanLII 8918 (BC HRT), 9 C.H.R.R. D/5391 (B.C.H.R.C.); E. (S.T.) v. Bertelsen (1989), 1989 CanLII 9029 (AB HRC), 10 C.H.R.R. D/6294 (Alta. Bd.Inq.); Fontaine v. Canadian Pacific Ltd. (1989), 1989 CanLII 137 (CHRT), 11 C.H.R.R. D/288 (Can.Trib.); Whittacre v. Northern Dispensary, (N.Y. Comm. on H.R.) Compl. Nos. AU-00015021387 and GA-00023030687-DN, August 17, 1988 [unreported]; Barton v. N.Y.C. Commission of Human Rights, 531 N.Y.S. 2d 979 (Sup. 1988); Estate of John Campanella v. Hurwitz (Recommended Decision of Administrative Law Judge, July 31, 1991, Compl. No. GA-0021030487)]. Arguments, as opposed to the findings, that AIDS should be considered a handicap are found only in Biggs v. Hudson.

The Chair of that tribunal, Helen Hughes, points out [at D/5393, para. 40348]:

There are many Canadian human rights tribunal decisions which relate to various other diseases and protect persons who are discriminated against on the basis of a physical disability. These have included heart condition, spondylolysis, varicolcele, asthma, diabetes, epilepsy, cerebral palsy and blindness.

AIDS is thus well within the limits in terms of seriousness and effect of other diseases which have been included as physical disabilities.

9Chair Hughes further points out decisions by the Supreme Court of Canada which hold that human rights legislation is to be broadly construed (paras. 40350 and 40351). The unanimous decision of the Supreme Court of Canada was presented by McIntyre J. in Ontario Human Rights Comm. and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102 at para. 24766 [D/3105]:

It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment . . . and give to it an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional, but certainly more than the ordinary — and it is for the courts to seek out its purpose and give it effect. The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.

Similar reasoning is to be found in the Right Honourable Brian Dickson, P.C., writing on behalf of the Court in Action travail des femmes v. Canadian National Railway Company (sub nom. Canadian National Railway Co. v. Canada (Canadian Human Rights Comm.)), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, 8 C.H.R.R. D/4210 at para. 33238 [D/4224]:

Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact . . . statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained.

10Based upon the nature of AIDS as a disease and its implications for those who have it, and applying both the words of s. 9(1)(b)(i) of the Code and the reasoning of the Supreme Court of Canada in the above cited cases, I conclude that persons living with AIDS are handicapped within both the literal words and the spirit of the Code. As such they are entitled to protection from discrimination under Part I of the Code. It is accordingly appropriate to consider the instant case under ss. 1 and 8 of the Code.

WAS MR. JEROME DENIED TREATMENT?

11The first question to be answered is whether or not Dr. DeMarco refused to treat Mr. Jerome both directly and by acting in a manner calculated to discourage Mr. Jerome from becoming a patient. The Commission's case relies upon the evidence given by Mr. Jerome about the interview, that given by Ms. Janine Kissner, formerly of the AIDS Committee of Windsor, and alleged inconsistencies in Dr. DeMarco's answers on the respondent questionnaire which he filled in for the Ontario Human Rights Commission in response to Mr. Jerome's complaint (Exhibit 2).

12Mr. Jerome testified that Dr. DeMarco asked him to go to an "interview" room, and that during the interview Dr. DeMarco stood, "with a cap, mask, and booties on his feet and gloves on his hands" (Transcript, v. 2, p. 15). He asked Mr. Jerome whether he was HIV+, to which he replied that he had AIDS. Dr. DeMarco then left the room for a period of time, then came back and explained.

that due to the fact that I have AIDS and the fact that he did not believe that universal precautions were enough to treat an individual in a clinical situation that he was postponing my treatment until he received from either Janine Kissner, the Medical Officer of Health, or his governing body, which I believe is the Essex County Dental Association, as to proper infection control procedures beyond universal precautions to treat me (Transcript, v. 2, p. 16).

Mr. Jerome contested this, saying that universal precautions were enough. He pointed out that Dr. DeMarco treated Mr. Jerome's lover, who had hepatitis B, which is much more contagious in the clinical environment.

13Mr. Jerome also testified that Dr. DeMarco stated he felt that the social service system was referring all their AIDS patients to him and that he was getting the name as the AIDS dentist in town. He also said

that because the offices had been newly decorated and air and water are used under pressure in the office environment that my blood and saliva, if there was [sic] any procedures going on, could be aerosolized and then be absorbed into the walls of the office, which had been newly decorated and the paint was not dry yet. So there again the whole office becomes a place for potential cross-infection and so that way he didn't want to treat me even because of the recent renovations to his office.

He also stated that he was quite disturbed with Windsor Western Hospital for cutting off his O.R. time, or reducing it considerably, which he used to treat AIDS patients in an O.R. setting within the hospital rather than in his clinical situation (Transcript, v. 2, p. 19).

Mr. Jerome then volunteered to talk with the three people Dr. DeMarco had mentioned, and Dr. DeMarco gave him these names. He testified that at the time he left the office there was no appointed [sic] given as to when he would return for treatment.

14Mr. Jerome contacted the offices of the three people after leaving the office. He felt he was discriminated against based upon his AIDS status, and on that basis also contacted the Human Rights Commission, the CBC and the Windsor Star. Later that afternoon he called Dr. DeMarco and informed him of this. At this time,

There was an offer to treat. I told him that I could not and would not in good conscience come to him now as a treating professional if I was not — if I was good enough to be treated at three in the afternoon why wasn't I good enough to be treated at 9:45 that morning when my appointment was booked.

We did agree to meet after the office was closed, just him and I at the office, it was at his request.

Shortly after this Mr. Jerome called again to say he would not be making the scheduled meeting. Mr. Jerome did not again attend Dr. DeMarco, and at a later time received treatment from another dentist.

15Ms. Kissner testified that she had spoken to Dr. DeMarco around the beginning of March, 1990, at which time he had called and asked that his name be taken off the referral list of dentists. He stated four reasons. First, he was getting too many referrals and getting a reputation in the city as the AIDS dentist. Second, that he needed more information regarding how to protect himself. Third, that he had moved to a new office with new, not yet hardened paint, which meant that they could not be washed down after receiving aerosolized saliva and blood particles. Fourth, that the hospitals were not co-operating with him in terms of using a "special room at the hospital for routine dental work" (Transcript, v. 2, p. 168).

16The Commission's claim with respect to Ms. Kissner's testimony is that it gives an indication of Dr. DeMarco's state of mind, and is indicative that he thought he was already treating his fair share of AIDS patients, and that he was concerned about his safety in treating AIDS patients. This "gives . . . the reason why he didn't want to take Mr. Jerome on as a patient" (Transcript, v. 7, p. 101).

17This is also claimed to be shown by the respondent questionnaire filled out by Dr. DeMarco (Exhibit 2). With respect to Mr. Jerome's statement in his original complaint (Exhibit 1), that Dr. DeMarco said "he could not treat me because he had not received the requested protocol from his professional association," Dr. DeMarco responded,

2(c) I advised Mr. Jerome that I was waiting for protocol for treatment of AIDS patients from a meeting I had suggested between the Essex County Dental Society, the Ministry of Health and the AIDS Committee of Windsor;

(d) Mr. Jerome asked if I was refusing him treatment. I advised him that I was not refusing him treatment but rather postponing it to the last patient of the day to obtain treatment protocol;

(e) I advised Mr. Jerome I would see him as the last patient of the day for treatment. At that time he raised the issue of my treatment of his friend who had hepatitis without requiring the appointment to be the last for the day;

(f) I advised Mr. Jerome I would proceed with this check-up at that time but that I would defer his cleaning to the final appointment of the day at 5:00 p.m.;

(g) I referred Mr. Jerome to the President of the Essex County Dental Society Dr. Roman Ghlilzon, Janine Kissner of the Aids [sic] Committee of Windsor, and the Dental Officer of Windsor for further information;

(h) Mr. Jerome agreed to contact the suggested parties and left my office without the checkup which I had agreed to perform at that time.

4 [referring to the afternoon telephone call from Mr. Jerome] I once again advised Mr. Jerome I would treat him at 5:00 p.m. that afternoon a suggestion with which he initially agreed but subsequently decided against.

18The Commission argues that the chronological narrative here indicates an attempt to keep from treating Mr. Jerome.

Now, I look at 2(a) to (f) and I see someone who is trying to avoid getting another AIDS patient. The first thing he tries is "Well, I'm waiting for some treatment protocol from a meeting that is yet to take place and I can't treat you until I get that." "Are you refusing me treatment?" "Oh, no, well come back at the end of the day." "Why do I have to have my treatment at the end of the day?" "Okay, I'll do your check-up now and your treatment later, your cleaning later." It's not just any time later, at the end of the day, the last appointment of the day.

It's logically inconsistent (Transcript, v. 7, p. 107).

19There are two factual questions to be decided here. First, did Dr. DeMarco refuse treatment on the morning of March 29 or did he postpone it until the last appointment of the day? Second, did he act in a way calculated to discourage Mr. Jerome from becoming a patient? With respect to the first question the verbal and written statements of Mr. Jerome contradict the written statement of Dr. DeMarco, although they agree in several other particulars. If this were all the evidence then the decision would have to turn on the questions of consistency and reliability. However, there was also relevant evidence presented by Ms. Carol Bump, Dr. DeMarco's receptionist, and Ms. Wendy Carmichael, Dr. DeMarco's dental hygienist.

20Ms. Bump testified that a few minutes after Mr. Jerome and Dr. DeMarco went into the office, she entered the office to give Mr. Jerome's charts to Dr. DeMarco. She asked Dr. DeMarco what they would be doing with the patient, and was told "to put the patient in operatory number two for a check-up, that we would be bringing the patient back at the end of the day for his cleaning" (Transcript, v. 5, p. 51). She shortly thereafter told Ms. Carmichael that the patient would have his check-up done at that time, but that he would come back later at the end of the day for his cleaning.

This last statement was confirmed by Ms. Carmichael. She further testified that between 10:15 and 10:30 Dr. DeMarco spoke to her, saying, "You won't be seeing Mr. Jerome today. I was going to do a check-up for him in room two and we were going to bring him back at the end of the day for the cleaning, and I guess this wasn't satisfactory to Mr. Jerome."

21Given this evidence the balance of probabilities is on the side of the respondent with respect to whether or not treatment was refused. I accordingly rule that the Commission has not, on the balance of probabilities, proven its case that Dr. DeMarco refused to treat Mr. Jerome. The rest of this decision will proceed on the basis that Dr. DeMarco offered to examine Mr. Jerome at the time of his scheduled appointment, and to treat him at 5:00 p.m. that day.

Nor do I think it has been shown that Dr. DeMarco acted in such a way calculated so as to discourage Mr. Jerome from becoming a patient. First, as the cross-examination of Ms. Kissner shows Dr. DeMarco had knowingly treated persons with AIDS in the past, had been one of seven or eight dentists volunteering to take referrals from the AIDS Committee of Windsor, and had had about half of the referrals sent to him. Dentists who did not volunteer to take referrals were not discriminating against people with AIDS, so long as they treated such people when they presented themselves as patients. Similarly, asking to be taken off a list of volunteers is not indicative of no longer being willing to treat people with AIDS. Although Ms. Kissner's evidence is consistent with the state of mind argued by the Commission it is not indicative of that state of mind.

22Second, in his draft copy of his complaint to the Royal College of Dental Surgeons (Exhibit 7), Mr. Jerome emphasized that Dr. DeMarco conducted the interview while wearing gloves, a mask, glasses and a cap. This could easily be taken as intimidating behaviour. However, the evidence of Ms. Bump, Ms. Carmichael and Dr. Nagle showed that this is standard treatment attire for Dr. DeMarco. So while Mr. Jerome's reaction to it is understandable, the dress is not in fact evidence of any attempt to discourage Mr. Jerome from becoming a patient.

23Third, the written statement of Dr. DeMarco quoted above refers to a conversation which took place within a short time period. Ms. Bump went into the room a few minutes after they did, and at that time Dr. DeMarco told her of his intention to bring the patient back at the end of the day. It is clear from the evidence of Mr. Jerome and Dr. DeMarco that Mr. Jerome was asking pointed questions, and was put off by Dr. DeMarco's dress. In such a case it would not be surprising if explanations about the postponement of treatment unfolded in parts and in response to questions. Accordingly, while the Commission's interpretation would explain the facts of the statement, I am not, on balance, convinced that it is the correct explanation.

Accordingly, I hold that Dr. DeMarco did not refuse to treat Mr. Jerome either directly or by acting in a manner calculated to discourage Mr. Jerome from becoming a patient.

WAS POSTPONEMENT OF TREATMENT DISCRIMINATORY?

24The second prong of the Commission's case is that the deferral of treatment is itself discrimination under the Code. It is necessary to first consider a question of burden of proof here. The Commission argues that Mr. Jerome's treatment was postponed because he has AIDS, that this fact is sufficient to show differential treatment, and thus that it is prima facie discriminatory. Given this the Commission has demonstrated its case and the onus of proof shifts to the respondent to show that there is a defence under s. 16 of the Act [Code]. Counsel for the respondent argues that the onus of proof remains with the Commission throughout this case and that s. 16 does not apply to this case. I shall examine each question in turn.

25Counsel for the respondent argues on the basis of the definition of "equal" in s. 9(1)(c):"”˜equal' means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination." He then notes that "making medical judgments that are different are not a prohibited ground" (Transcript, v. 7, p. 148). The argument here presumably is that the reason for inequality of treatment is not because of AIDS, which would be a prohibited ground of discrimination because it is a handicap, but because of a medical judgment.

26But the question which would then be at issue is whether this is constructive discrimination under s. 10, which section reads in part as follows:

10 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; . . .

10 (2) The Commission, a board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

This section would require the Board of Inquiry to determine that the health judgments which would require postponing treatment in these circumstances are reasonable and bona fide, which would require being satisfied that s. 10(2) was met. And the arguments for this would certainly have to come from the respondent.

27If the grounds for unequal treatment were based upon the complainant having AIDS, then there is prima facie discrimination. In this case the burden would be on the respondent to provide a defence. This is clearly stated by the Supreme Court of Canada in Ont. Human Rights Comm. v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 [3 C.H.R.R. D/781]. On pp. 207–208 [D/783, paras. 6892–93], McIntyre J. states on behalf of the Court,

The case at bar involves complaints of discrimination in respect of employment on account of age. It was common ground that the compulsory retirement at age sixty constituted a refusal to employ or continue to employ the complainants. While discrimination on the basis of age is in terms forbidden in s. 4 of the Code, in accordance with subs. (6) an employer may discriminate on that basis where age is a bona fide occupational qualification and requirement for the position or employment involved. Where such bona fide occupational qualification and requirement is shown the employer is entitled to retire employees regardless of their individual capacities, provided only that they have attained the stated age. It will be seen at once that under the Code non-discrimination is the rule of general application and discrimination, where permitted, is the exception.

Once a complainant has established before a board of inquiry a prima facie case of discrimination, in this case proof of a mandatory retirement at age sixty as a condition of employment, he is entitled to relief in the absence of justification by the employer. The only justification which can avail the employer in the case at bar, is the proof, the burden of which lies upon him, that such compulsory retirement is a bona fide occupational qualification and requirement for the employment concerned. The proof, in my view, must be made according to the ordinary civil standard of proof, that is upon a balance of probabilities.

28Mr. Jerome was without question treated differently than are the ordinary patients who attend for a check-up and cleaning. This is either because he has AIDS or because of a medical judgment. In either case the Commission has established a prima facie case of discrimination, and the burden of proof to provide a defence falls upon the respondent.

29Counsel for the Commission argued that a relevant defence had to be based upon s. 16, while counsel for the respondent argued that this section could not apply to services. The basis was first that the section was intended to deal with the employment situation and the reasonable accommodation and the bona fide restrictions, and second that the language of the section could not be read so as to have it apply to services.

Section 16 reads as follows:

16 (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap.

(a) The Commission, a board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Now, the section has been interpreted to apply as a potential defence to a denial of service. In the McLeod case, the Divisional Court considered the defence of this section to the denial of a bowling tournament because of handicap, and concluded that the respondent had failed to meet the statutory defence (Youth Bowling Council of Ontario v. McLeod (1990), 1990 CanLII 6869 (ON CTGD), 14 C.H.R.R. D/120 (Ont. Div.Ct.)). In the instant case Mr. Jerome's right to equal treatment with respect to dental services will be exercised by attending the dentist and being treated in the same way as any other patient. He will be unable to fulfil the requirements attending the exercise of the right if his handicap (AIDS) is such that his needs for treatment at that time cannot be accommodated by Dr. DeMarco without undue hardship on Mr. Jerome considering the "cost, outside sources of funding, if any, and health and safety requirements, if any." It is thus possible to find in principle an application of this section to the instant case. In fact, in the presentation of this case there were discussions about the problems of treating at the time of Mr. Jerome's appointment because of both health and safety considerations. If the respondent has made out a compelling argument, on the balance of the probabilities, for either of these considerations for being unable to treat, then there will have been a successful defence under this section.

30I shall look first at safety considerations. The question is whether Mr. Jerome could have been treated at the time of his scheduled visit without endangering those doing the treating or other patients, and whether this could have been done without undue hardship. With respect to this the Commission introduced expert evidence from Dr. J. Hardie, who is Head of the Department of Dentistry at Vancouver General Hospital, who is an expert in infection control, and who has served as an advisor in this matter to both the Canadian Dental Association and the Ontario Dental Association. Dr. Hardie testified that there exists a set of "universal precautions" or infection control procedures which both the Canadian Dental Association and the Royal College of Dental Surgeons of Ontario recommend for use with all patients, and which if used "are sufficient to ensure that there is not a significant risk of transmitting HIV during dental treatment (Exhibit 22, "A.I.D.S. and Dentistry," A report prepared for Kaye Joachim, Counsel, Ontario Human Rights Commission, by Dr. John Hardie)." Recommendations concerning infection control had been sent to all dentists by both the Canadian Dental Association and the Royal College of Dental Surgeons of Ontario.

31Counsel for the respondent argued that the standard of the expert in the field cannot be expected to be known by every practitioner, and so it is reasonable to postpone treatment in order to consult protocol on this matter: "The standard of reasonable care is what has to be the test, and you can't expect a dentist in Windsor or a dentist in Red Lake to know as much about infection control as Dr. Hardie . . ." (Transcript, v. 7, p. 154). Against this is the testimony of Ms. Kissner that she sent the document from the Royal College of Dental Surgeons of Ontario concerning infection control to Dr. DeMarco after her discussion with him about universal precautions in early March 1990 (Transcript, v. 2, p. 170). Further, Dr. Patrick J. Nagle, who was introduced by counsel for the respondent as an expert witness in the practice of periodontistry, testified that Dr. DeMarco is recognized in the Windsor area as a leader in infection control (Transcript, v. 6, p. 44). Based upon this I conclude that Dr. DeMarco did not have sufficient grounds to postpone treatment in order to obtain more details on infection control protocol.

32Counsel for the respondent also argued that the infection control guidelines are "minimum guidelines and recommendatory only" (Transcript, v. 7, p. 139). The position is that it is reasonable to take more stringent infection control precautions than the universal precautions when one is treating a known AIDS patient. Dr. Nagle testified, with respect to this, that there is no information that "you cannot take extra precautions . . ." (Transcript, v. 6, p. 52). He testified that the dental clinics at Sunnybrook Hospital and the Ottawa Civic Hospital, both of which are affiliated with medical schools, treat people with AIDS only at certain specified times so that they can take more thorough infection control precautions, such as draping walls and equipment and more thoroughly sterilizing equipment. Presumably these extra precautions are time-consuming, and could not have been taken in the time allotted Mr. Jerome, since the appointment was made without knowledge that he was a person living with AIDS.

33On the other hand, Dr. Hardie testified that universal precautions are sufficient for safe treatment (e.g., Transcript, v. 3, p. 129). Further there is the statement of the Royal College of Dental Surgeons of Ontario in their official journal, Dispatch, ("AIDS and the Profession," Dispatch, Oct. 1989, p. 6 (Exhibit 6C)),

When treating a patient known to have HIV infection, should additional precautions be taken?

Since medical history and examination cannot reliably identify all patients infected with HIV, it is recommended that universal precautions be used routinely for all patients when preforming [sic] procedures in which exposures to blood and saliva are anticipated. As these precautions are sufficient to protect against the transmission of HIV, no additional precautions are necessary.

In light of this, I hold that it has not been made out, on a balance of probabilities, that safety considerations required postponing treatment to the end of the day, and that this accordingly is not a defence against the prima facie case of discrimination.

34I shall now consider the possible defence based upon grounds of health. Counsel for the respondent argued that "good dentistry required him [Dr. DeMarco] to defer treatment" (Transcript, v. 7, p. 137). There are two grounds for this position. Both, it should be noted, relate to the fact that it was only when Mr. Jerome appeared for treatment that Dr. DeMarco became aware that Mr. Jerome had AIDS. The first ground is that it was necessary to contact the treating physician in such cases before treating, which would require postponement. The second ground is that a proper cleaning of the teeth of people with AIDS (as opposed to those with HIV infection, but no major symptoms) requires that this be done by the dentist rather than the hygienist, which task could not have been accomplished in the particular circumstances of that day.

35Evidence for the first ground is to be found in the paper prepared by Dr. Hardie (Exhibit 22, p. 33). There he says,

HIV+ patients who have symptoms of decreasing immunologic capacity do require additional care. It is essential to consult with the attending physician for an assessment of the immunologic tolerance of the patient, information on prescribed medications, an idea of the patient's prognosis and current physical and mental status. These details are pertinent to the development of a safe and effective dental treatment plan.

In reply to questions in cross-examination, Dr. Hardie stated that a person with AIDS would by definition have a decreased immunologic capacity, and that after an examination the treating dentist should consult with the patient's physician before taking another step (Transcript, v. 4, pp. 74–76). This judgment was confirmed by Dr. Nagle (Transcript, v. 6, pp. 93–94). The Commission did not present evidence in opposition to this medical judgment.

36Evidence for the second ground was presented by Dr. Nagle. He testified that all AIDS patients show an increased susceptibility to periodontal disease, which results in a "compromised periodontal support system for the tooth" (Transcript, v. 6, p. 77). In the case of AIDS patients the normal procedures with respect to cleaning is to perform curettage, which involves a deeper than normal cleaning, and which normally necessitates a local anesthetic. Dental hygienists are not capable of providing curettage, and may not give a local anesthetic in Ontario (Transcript, v. 6, p. 71, pp. 86–88). Dr. Hardie also stated that the positive answer given by Mr. Jerome on the "Patient Dental History" questionnaire to the question "Have you every [sic] had any gum disease or Trench Mouth" indicates a condition which would require the cleaning procedure to be done by the dentist rather than by the hygienist (Transcript, pp. 89–91). The Commission did not contest this evidence.

37I therefore conclude that proper dental procedure would require Dr. DeMarco to do the cleaning rather than the hygienist, and that the cleaning would have to be a more thorough one than for most patients. Exhibit 35 is the day sheet giving Dr. DeMarco's appointments. It shows that he was scheduled to provide two crowns for a patient between 9:00 a.m. and noon. In order for him to do the cleaning required at the time of Mr. Jerome's appointment, he would have had to delay significantly this patient's treatment, which was already begun. This would be very poor dental practice, and an undue hardship upon that patient. This would not have been the case for a normal cleaning, since Dr. DeMarco would have done an examination and the hygienist would have done the cleaning.

38Both of these grounds show that the health requirements for treating Mr. Jerome could not be met in the circumstances of March 29, 1989, without undue hardship to Dr. DeMarco, given the health care needs of his other patient at that time. The earliest time at which Mr. Jerome could be rescheduled for treatment was at the end of the day which is what was done. I accordingly find that the respondent has provided a complete defence to the prima facie discrimination in the provision of services because of handicap.

DECISION

39I have found that the Commission did not demonstrate a prima facie case of discrimination with respect to the first prong of its case, namely that Dr. DeMarco refused to treat Mr. Jerome directly or by acting in a manner calculated to discourage Mr. Jerome from becoming a patient. I have found that there was a prima facie case of discrimination with respect to the second prong, which is that of the deferral of treatment, but that the respondent has provided a complete defence to this under s. 16 of the Code. I accordingly find that Dr. DeMarco did not discriminate in services with respect to Mr. Jerome on the basis of handicap. The complaint is dismissed.

40Counsel for the respondent ask for an opportunity to make submissions on the issue of costs; counsel for the Commission agree that such submissions, if appropriate, could be heard at a later time. I accordingly reserve a decision on this question.