Lowry v. Royal Victoria Hospital, 2009 HRTO 1739

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Lowry

Applicant

-and-

Royal Victoria Hospital

Respondent

DECISION

Adjudicator: David A. Wright

Date: October 21, 2009

Citation: 2009 HRTO 1739

Indexed as: Lowry v. Royal Victoria Hospital

APPEARANCES BY

Peter Lowry, Applicant ) On his own behalf

Royal Victoria Hospital, Respondent ) Shane Smith, Counsel

INTRODUCTION

1The applicant in this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), has been unable to obtain a family physician since he moved to Barrie from Toronto several years ago. He alleges that the respondent Royal Victoria Hospital (the “Hospital”) discriminated against him through what he says its role in distributing a questionnaire provided to family physicians by prospective patients and providing support to the organization that distributes the questionnaires to family physicians. In a previous Interim Decision, 2009 HRTO 879, the Tribunal determined that the most fair, just and expeditious manner to proceed would be to determine whether it is plain and obvious that the Application could not succeed. I heard oral submissions on this issue during a conference call held on October 2, 2009.

FACTUAL BACKGROUND

2The central facts in this matter are undisputed. The questionnaire to which the applicant objects was distributed by an organization called “The Barrie Area Physician Recruitment Task Force” (the “Task Force”), in which the Hospital is a participant. The coordinator of that program (the “coordinator”) is not an employee of the Hospital, but works out of office space provided by the Hospital. She is paid as a contractor by the Hospital, but the Task Force reimburses the Hospital for these payments.

3The Task Force recruited five physicians to the Barrie area to establish family practices, and individuals seeking to become patients of one of the new family physicians were invited to fill out and submit the questionnaire. The questionnaires were sent to a post office box, and not to the Hospital’s address. The Hospital states that it had no direct role in reviewing, processing, or assessing the questionnaires. It also states that its understanding is that the coordinator had no role in reviewing, processing, or assessing the questionnaires and that her involvement was limited to passing them on to the group of family physicians (“the physicians”) unopened. It states that the physicians’ medical practices are operated without any oversight or direction from the Hospital.

4The questionnaire itself asks prospective patients for their contact information, date of birth, health card number, occupation, and pharmacy. It inquires whether the patient has a family physician currently, and whether he/she has ever been “discharged/fired” from a family practice. It asks the individual to describe his or her previous medical history, to list any current medical issues and any specialist he or she is currently seeing about them, the medications currently being taken, and the medical procedures/surgeries he or she has had in the past. It also includes a statement of “terms and conditions” that describe the physicians’ philosophy of care and requires the patient’s and the physician’s signature on that form.

5The bottom of the questionnaire contains the following text:

This questionnaire must be filled out completely to be considered. Any misleading or omitted information may be grounds for dismissal. Please return completed questionnaire to P.O. Box 130, Barrie Ontario, L4M 4S9. The Physicians will review your information to determine whether the scope of their practice encompasses your medical needs. After careful review, patients accepted to the practice will be contacted by the office to meet for an interview, after which a final decision will be made. Questionnaires will be kept confidential. All applicants will be considered. We do not discriminate based on age or medical condition. [Bold in original]

6The final two conditions in the list of “Terms & Conditions” are as follows:

• Patients are not accepted on a first come, first serve basis.

• The selection process for the Physician’s [sic] is in no way discriminatory and all Questionnaires will be given equal consideration.

ANALYSIS

7There is no need to hear further oral evidence in this Application as, in my view, it can be resolved on the basis of the undisputed facts set out above. Having considered the applicant’s arguments, I find that it is plain and obvious that the Hospital cannot be found to have breached the Code on the basis alleged by the applicant.

8First, there is no basis upon which the Hospital is legally liable for any actions of the Task Force or the physicians. The applicant submits that there are various ways in which the Hospital becomes responsible for the actions of the physicians and the Task Force: by renting space to the Task Force and giving it other supports; by participating in the Task Force; and by granting the physicians hospital privileges. He argues that the Task Force could not function without the support of the Hospital.

9Section 46.3(1) of the Code, which set out circumstances in which an organization or individual may be liable for the actions of others, reads as follows:

For the purposes of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 46.2(1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

10There is no basis to impose Code liability upon the Hospital for any actions of the Task Force, merely on the basis of provision of space, support or facilities. The Hospital’s mere participation in the Task Force would not make it liable for any alleged actions by the Task Force, a separate organization. Nor is the Hospital responsible for alleged actions of physicians in their family practices, carried on outside the Hospital, merely because they also have hospital privileges. Physicians working in a separate practice are not officers, agents or employees of a hospital.

11Second, there is no basis for Code liability against the Hospital on the basis of any alleged actions in distributing the questionnaire. The Tribunal has held that the asking of questions that relate to Code grounds in the course of determining whether to accept a patient is not in and of itself a Code violation: Sinopoli v. Walling, 2009 HRTO 50 at paras. 46-52. Code liability may arise based upon what is done with the information by the physician in deciding whether to accept the patient, but that provides no legal basis for an Application against the Hospital.

12Accordingly, it is plain and obvious that the Application cannot succeed and it is dismissed.