Stangret v. Nagji, 2009 HRTO 1431

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerrald Stangret Applicant

• and-

Noor Nagji Respondent

DECISION

Adjudicator: Ena Chadha Date: September 9, 2009 Citation: 2009 HRTO 1431 Indexed as: Stangret v. Nagji

APPEARANCES BY

Gerrald Stangret, Applicant ) On His Own Behalf Noor Nagji, Respondent ) Sally Bryant and Sarah Shody, Counsel

INTRODUCTION

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 15, 2008, alleging discrimination in the area of goods, services and facilities on the grounds of race, colour, ancestry, place of origin, ethnic origin, disability and age.

2The respondent is a physician who owns and operates a medical clinic in Toronto, Ontario. The applicant alleges that the respondent discriminated against him when she treated him in a dismissive manner, refused to prescribe the medication he requested and terminated his medical care. The applicant believes he was treated this way because he is an older, white, disabled man. The applicant also filed a complaint with the College of Physicians and Surgeons of Ontario regarding this incident.

WITNESSES

3The hearing into this matter was held on September 2, 2009. The applicant testified on his own behalf. The respondent called the expert evidence of Dr. Rae Lake, a physician specializing in the area of family medicine, and testified on her own behalf.

SUMMARY OF THE EVIDENCE

4The respondent’s medical clinic is located in an area of Toronto colloquially described as “Little India” in reference to the large presence of South Asian people, restaurants and retail outlets in the neighbourhood.

5The applicant, who self identifies as an “old”, “white”, male, has various illnesses and impairments, including a mobility restriction necessitating the use of a walking cane. In addition, the applicant states that he lives with a serious and rare allergy, as well as a chronic pain condition (for which he regularly takes powerful pain medication). The applicant, currently 54 years old, alleges that, for the three years he was a patient at the respondent’s clinic, the respondent treated him in a dismissive manner and would only spend 60 to 90 seconds with him during his visits. The applicant testified that over the three years he observed the respondent spend considerably more time (usually 20 minutes) with patients who were younger, healthier and people of racialized background.

6The Application stems from events that took place at the medical clinic on October 9 and 10, 2008. The applicant alleges that he attended at the respondent’s medical clinic on October 9, 2008 in order to receive treatment for a sleep problem. The applicant alleges that the respondent refused to provide him with medication to help him with his sleep problem and, instead, referred him to see another physician at her clinic on the following day. The applicant testified that he did not understand why the respondent was referring him to another physician.

7The applicant alleges that he apprehended that the respondent’s motive in referring him to a second doctor associated with her clinic was to defraud or double bill the Ontario Health Insurance Plan (“OHIP”). The applicant testified that because of these suspicions he decided to take his tape recorder with him for the next appointment and, as such, he taped the events of October 10, 2008. The applicant indicated that, although he had provided the the College of Physicians and Surgeons of Ontario with a tape recording of the October 10 events, he did not intend to rely on that tape recording for the human rights hearing because the recording was not relevant to his concerns of discriminatory treatment.

8The applicant returned to the medical clinic on October 10, 2008, for his appointment with the second physician. The evidence in the hearing establishes that the second physician was Dr. Lollita Nehra. The applicant alleges that he was scheduled for the first appointment of the day; however, Dr. Nehra was 45 minutes late. The applicant alleges that, when he consulted with Dr. Nehra, he specifically advised her not to prescribe him a certain type of medication which caused him to feel unwell. The applicant alleges that Dr. Nehra ignored his instructions and prescribed the very medication that he had told her to avoid.

9The applicant alleges that, after his appointment with Dr. Nehra, he asked to speak to the respondent. When he spoke to the respondent, the applicant alleges that he simply and calmly questioned her about the propriety of her referral to Dr. Nehra and expressed his concerns about the medication that Dr. Nehra had prescribed. The applicant alleges that, in turn, the respondent refused to answer his questions and told him to leave the clinic and to never return. The applicant alleges that he believes the respondent terminated his medical services because he challenged her authority. The applicant testified that he believes the respondent “orchestrated” the situation as a means “to get rid” of him because of his status as a disabled, older, white male.

10The respondent denies the allegations of discrimination and submits that the applicant received medical care that was prudent and reasonable for a walk-in patient. The respondent testified that her medical clinic provides both walk-in services and family care for patients registered with the clinic. The respondent testified that care given to a walk-in patient is intended to provide “breach” or interim treatment; in other words, to temporarily attend to the patient’s needs until the patient is able to seek the advice of their own family physician. The respondent testified that while it was the general policy of the clinic not to prescribe narcotics to walk-in patients, physicians exercised their clinical judgment based on the individual circumstances.

11The respondent testified that, on October 9, 2008, she saw the applicant as a walk-in patient. The applicant complained about experiencing insomnia and stated that his life was “a pile of garbage”. The respondent testified that, based on her clinical judgement, she decided to refer the applicant to Dr. Nehra for a one-hour counselling session the next day because of the concerns the applicant had expressed about his life.

12The respondent alleges that she next saw the applicant on October 10, 2008, when he came down the hall from his appointment with Dr. Nehra. The respondent alleges that the applicant was angry because he believed the referral to Dr. Nehra for counseling was “a waste of time” and he insisted on receiving a prescription for a controlled substance. The respondent alleges that the applicant’s angered and agitated state was disturbing her staff and other patients, and as such, the applicant was asked to leave the clinic and to not return.

13The respondent acknowledged that while patients attending her medical clinic are predominately from racialized communities, including South Asian, African, Chinese and Aboriginal peoples, she also has patients who would be identified as “white”. The respondent testified that not only do her patients represent diverse race and ethnicities, but that she also has patients of all ages, ranging from newborn to over 90 years of age. The respondent testified that her oldest patient is a 92-year-old Caucasian man. The respondent testified that many of her patients live with permanent disabilities and that several have mobility disabilities requiring them to use WheelTrans services to attend at her clinic.

14The respondent denies that the applicant’s age, race, ethnicity or disability had any bearing on her decision to terminate the applicant’s medical services. The respondent testified that the applicant’s medical services were terminated on October 10, 2008, because the applicant was loud, angry and aggressive when his demands for certain medication were refused.

15Dr. Lake was qualified as an expert in family medicine. Dr. Lake has been a family physician since 1972 and a fellow of the Canadian College of Family Physicians since 1996. He was certified as an independent medical examiner by the American Board of Independent Medical Examiners in 2000 and, since that time, has served as a medical consultant for the College of Physicians and Surgeons of Ontario, as well as practicing family medicine in Toronto. In addition, Dr. Lake is an assistant professor in the Department of Family and Community Medicine at the University of Toronto.

16Based on his review of the applicant’s medical file with the respondent’s medical clinic, the Application and the Response, Dr. Lake testified that he formed the opinion that the respondent provided a reasonable standard of care to the applicant. Dr. Lake indicated that he agreed with the respondent’s decision that, given the applicant’s state of mind on October 9, 2008, it was not appropriate to prescribe medication to the applicant and that it was more prudent to refer the applicant for counseling. Dr. Lake further opined that, when a patient behaves in an agitated and hostile manner, it is incumbent upon a physician to take steps to protect other patients and employees from any threatening behaviour. As such, Dr. Lake indicated that, if the applicant had behaved as alleged on October 10, 2008, he agreed with the respondent’s decision to terminate the applicant’s medical services.

ANALYSIS AND FINDINGS

17The initial evidentiary burden rests with the applicant to establish, on a balance of probabilities, a prima facie case that he was discriminated against in receipt of the respondent’s medical services on the basis of the prohibited the grounds of race, colour, ancestry, place of origin, ethnic origin, disability and age. A prima facie case of discrimination “is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer”, see Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 28.

18Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision did not involve a discriminatory consideration. If the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground; see Almeida v. Chubb Fire Security Division (1984), 1984 CanLII 5036 (ON HRT), 5 C.H.R.R. D/2104 (Ont. Bd. Inq.). The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent; see Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT), 26 C.H.R.R. D/58 (Ont. Bd. Inq.).

Allegation of Dismissive Treatment

19The parties disputed whether the applicant was a walk-in patient or a family care patient registered with the clinic. The applicant alleges that he was a regular patient at the clinic, had been seen by the respondent approximately 20 times, and on each occasion she spent no more than 90 seconds with him. The respondent testified that the applicant had always attended the clinic as a walk-in patient and, although the applicant may have consulted with other physicians at her clinic, she had only seen the applicant a total of seven times, on each occasion as a walk-in patient.

20The respondent tendered into evidence the applicant’s medical file as maintained by the clinic. This evidence indicates that since February 2006 the applicant attended at the respondent’s clinic on numerous occasions and was seen by various doctors working at the clinic. Contrary to the applicant’s assertion that he had seen the respondent at least 20 times, the medical documentation indicates that the respondent saw the applicant only on five occasions prior to the October 9 and 10, 2008 visits which are in dispute in this case.

21The applicant alleges that the respondent routinely treated him in a dismissive manner because she only spent 60 to 90 seconds with him. The medical notes indicate that the applicant’s visits with the respondent ranged from minor to full assessments. The medical notes indicate that three of the applicant’s medical consultations with the respondent were recorded for OHIP billing purposes as 3 to 5-minute assessments, one was a general assessment of 15 to 20 minutes and one appointment in March 2008 was a full half-hour. As such, the documentary evidence neither corroborates the applicant’s impression that the respondent always attended to him for less than 90 seconds, nor supports his allegation of dismissive treatment by the respondent.

Allegation of Refusal to Prescribe Requested Medication and Termination of Services

22The applicant alleges that the respondent discriminated against him when she refused to prescribe him with something to help his sleep and terminated his medical services. The applicant alleges that the respondent intentionally created a conflict situation in order to get rid of him so that there would be “one less white person that she had to treat”. Further, the applicant denies that he demanded narcotic medication and points out that any such prescription would have been unnecessary and duplicative of the pain medication he already had been prescribed by a specialist for his chronic pain condition.

23While Dr. Lake testified that the respondent’s treatment of the applicant was within an appropriate standard of care, I do not find this to be relevant to my determination of whether there was differential treatment on a Code protected ground. The question to be answered in this case was whether a Code protected ground was a factor in the respondent’s actions or decision towards the applicant.

24In the medical records of the five occasions the respondent attended to the applicant, the respondent noted that the applicant had twice sought prescriptions for sleep medication and twice sought prescriptions for pain medication. As such, the evidence does not support the applicant’s claim that there was no need for him to demand any controlled substance given his existing pain medication prescription. In fact, the evidence indicates that the applicant had on four previous occasions requested, and twice received, very limited prescriptions for a controlled substance.

25Considering all the evidence, the applicant has not established, on a balance of probabilities, that the refusal to prescribe the requested medication and/or the termination of his medical services were related, in whole or in part, to any protected Code grounds. Other than his allegations, the applicant has put forward no evidence from which an inference can be drawn that there was a connection between the respondent’s treatment and his personal characteristics as an older, white, disabled male. In the absence of any evidence evincing a connection between the respondent’s actions to the applicant’s race, colour, ancestry, place of origin, ethnic origin, age and disability, the applicant has not made out a claim that the respondent discriminated against him based on those grounds.

26Further, the respondent has presented a reasonable basis for terminating the applicant’s medical services. The applicant claims that he was calm when he approached the respondent after his counseling appointment. I prefer the evidence of the respondent that the applicant was angry and agitated. The applicant acknowledged that he was already upset that his appointment was late by 45 minutes and then was even more frustrated by Dr. Nehra’s failure to pay heed to his request to avoid a certain medication. As such, the applicant’s evidence does not accord with his claim that he spoke calmly to the respondent. I accept the respondent’s evidence that when the applicant approached her he was confrontational, loud and angry such that it caused a disruption for the other patients and staff and that it was for this reason alone the respondent asked him to leave the clinic.

27I find that the evidence was insufficient to establish, on a balance of probabilities, that any discriminatory factor was involved in the applicant’s medical care or the respondent’s decision to terminate medical services. As such, I find that the applicant’s complaint, with respect to race, colour, ancestry, place of origin, ethnic origin, disability and age, is not founded.

28For all of these reasons, the Application is dismissed.