Marchand v. St. Michael’s Hospital, 2009 HRTO 566

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Marchand

Applicant

-and-

St. Michael’s Hospital and Niculina Margulies

Respondents

case Resolution Conference DECISION

Adjudicator: David Muir

Date: May 5, 2009

Citation: 2009 HRTO 566

Indexed as: Marchand v. St. Michael’s Hospital

AppearanceS BY

Donna Marchand, Applicant ) Sheila Cuthbertson,

) Counsel

St. Michael’s Hospital, Respondent ) Michael Conradi,

) Counsel )

Dr. Niculina Margulies, Respondent ) Christopher Hubbard,

) James Miglin,

) Counsel

1This is an Application filed on September 19, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents raised a number of preliminary issues which the parties agreed should be dealt with at the Case Resolution Conference, prior to a consideration of the merits of the Application. The parties agreed that no evidence would be called, although both Dr. Margulies and Ms. Marchand spoke briefly.

3The complaint which forms the subject matter of this Application (the complaint) was filed with the Ontario Human Rights Commission on February 2, 2004. Ms. Marchand self identifies as an Aboriginal person. In the complaint, it is stated that her right to equal treatment with respect to services without discrimination because of race, ancestry and ethnic origin has been infringed by Dr. Margulies and St. Michael’s Hospital. The events complained of occurred in November 2001.

The Allegations in the Complaint

4Ms. Marchand states that she was admitted to St. Michael’s Hospital on November 16, 2001 and was discharged on or about November 22, 2001. During that time. Ms. Marchand states that she was seen by Dr. Margulies. Dr. Margulies wrote a discharge summary, or “Final Note”, dated November 22, 2001, which was copied to Ms. Marchand’s family doctor.

5In or around December 2001, Ms. Marchand became aware of the contents of the discharge summary. In the summary, amongst other things, Dr. Margulies wrote “she [Ms. Marchand] has major social problems as she tells me she used to be a lawyer but currently she is on disability” and “she denies drinking alcohol however I believe that she may drink some”.

6Ms. Marchand states in the complaint that she believes that the comments in the discharge summary were based on negative and stereotypical assumptions about Aboriginal people and that, as an Aboriginal person, she was subjected to discrimination in the provision of health services. Ms. Marchand also states that the negative and stereotypical assumptions about her, as an Aboriginal person resulted in her being treated with a dismissive attitude by other staff while a patient at the hospital. No particulars of this latter allegation are provided in the complaint.

7On February 13, 2009, Ms. Marchand provided particulars of the alleged dismissive behaviour of other staff towards Ms. Marchand as a result of the poisoned atmosphere created by Dr. Margulies’ stereotyping of Ms. Marchand:

a. Ms. Marchand alleges that Dr. Parkins requested zinc ointment and was told there was none. Dr. Parkins purchased zinc ointment at a nearby pharmacy. Later the hospital admitted it had zinc ointment.

b. Ms. Marchand was placed in a bed for several hours before the siderails were raised against Ms. Marchand’s objections. As a result, she could not de-bed and go to the washroom when required. Ms. Marchand was not allowed to clean herself after she defecated and instead was cleaned by hospital staff against her express wishes.

c. A feeding/air tube was placed through Ms. Marchand’s nose for three hours despite her protests. It served no purpose.

d. Ms. Marchand finally accepted diapers and began to wear them. When she requested a new one, she was told she would have to wait until hospital staff decreed that she could receive a new one.

8The respondent Dr. Margulies has raised a number of preliminary issues as follows:

a. The incident the complaint is based on occurred more than six months before the complaint was filed;

b. The issue in dispute has been dealt with under the Regulated Health Professions Act;

c. The complaint discloses no prima facie case.

9The respondent St. Michael’s Hospital concurs that the complaint was filed more than six months after the incidents complained of and that it is therefore out of time and should be dismissed. St. Michael’s Hospital also takes the position that the Tribunal ought not allow Ms. Marchand to raise the new factual allegations disclosed for the first time in February 2009, more than seven years after the alleged discriminatory incidents described in the complaint.

10The parties all agreed for purposes of dealing with the delay issue, that the current provisions of section 34 apply to section 53(3) applications and that the time limitation on the filing of new applications, within one year after the event or series of events complained of, applies in this proceeding.

11After hearing the submissions of the parties, I advised the parties that I was allowing the respondent Hospital’s objection to the introduction of the new particulars first disclosed on February 13, 2009. I also asked for written submissions on one aspect of the delay issue which the parties had not expressly dealt with, that being the effect, if any, of a letter written by Dr. Moraud in September 2003. In that regard, I provided the parties with the Tribunal’s recent decision in Klein v. Toronto Zionist Council, 2009 HRTO 241. I also indicated that I would reserve on the other issues raised and release written reasons in respect to them. The parties agreed to a schedule for written submissions with the applicant making her submissions first, and replying to the respondents if she thought it necessary.

Request to call evidence

12Subsequent to the Case Resolution Conference and after receiving further written submissions, the applicant requested an opportunity to call evidence in respect of an alleged medical inability to file a complaint. The respondents both objected to this request.

13The respondents state that the issue of delay was raised by them well in advance of the Case Resolution Conference and that they had each made their positions on these issues clear. In short, if there was evidence necessary for the resolution of these issues, the time for its tendering was at the Case Resolution Conference on March 20, 2009.

14The Tribunal is committed to the fair, just and expeditious resolution of the merits of all transitional applications under sections 53(3) and 53(5), and its Rules and processes are designed to ensure the timely resolution of these applications. The applicant’s request amounts to a request to re-open the hearing after it has concluded. The issue of delay and the respondents’ positions on the delay issue were clearly articulated months (if not years) prior to the March 20 Case Resolution Conference. The parties agreed that no evidence would be called although both Ms. Marchand and Dr. Margulies were present and spoke briefly. To my mind, it would be inconsistent with the Tribunal’s mandate to ensure a fair, just and expeditious resolution of applications under section 53(3) to permit the re-opening of evidence in these circumstances. Accordingly, the issue will be determined based on the materials filed by the parties and their submissions made prior to, at and subsequent to the Case Resolution Conference.

New Allegations/Particulars

15As indicated, I ruled at the Case Resolution Conference that I would not allow the applicant to rely upon and would not require the respondents to respond to new factual allegations disclosed for the first time in February 2009. My reasons for reaching this conclusion follow.

16The allegations in the complaint are in substance based on racial stereotyping. Dr. Margulies formed a view of Ms. Marchand’s alcohol consumption that was inaccurate. The complaint also alleges that Dr. Margulies’ attitude towards Ms. Marchand was reflected in the quality of medical services provided to her. On the face of the complaint the one particular provided relates to the content of a discharge summary note by Dr. Margulies. There are no other specifics alleged until February 13, 2009 when a number of discrete incidents are particularized as set out above. It is not clear from these particulars which individuals would have been involved in the decision-making in relation to those allegations. Without more particulars, it may be impossible for the respondents to respond to those allegations in any meaningful way given the passage of time.

17Whether framed as an amplification of the complaint or an expansion of the substance of the complaint, it does not matter. The alleged events occurred in November 2001 and implicate unknown individuals. To my mind, it would be unfair for the respondent hospital and an abuse of process for the respondents to be called upon to answer those allegations at this late date.

Is the Application out of time?

18The complaint forming the substance of this Application was filed on February 2, 2004. The alleged events giving rise to the complaint occurred between November 16 and November 22, 2001. The applicant was aware of all of the facts contained in the complaint in December 2001.

19Ms. Marchand stated at the Case Resolution Conference that the Commission had already determined the issue of the timeliness of the complaint. A letter from the Commission was produced which appeared to be a decision on the issue. The respondent Dr. Margulies stated that she had never seen the Commission’s letter. Indeed, the letter is dated two years before the Commission had served the complaint on Dr. Margulies. Both respondents argued that the decision of the Commission was not binding on the Tribunal and it could not be res judicata if neither respondent had even been aware of the issue at the time, much less had an opportunity to make submissions on the issue.

20I agree with the respondents. The decision of the Commission, if that is what it is, is not binding on the Tribunal. It would also be manifestly unfair to the respondents to find that they are bound to this decision, made before they were served with the complaint.

21To my mind, this Application is out of time and for that reason ought to be dismissed. Ms. Marchand’s submissions were grounded largely in the case law surrounding the old section 34 of the Code. I accept the respondents’ submission that somewhat different considerations apply under the new provisions

22The current section 34 provides as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

23Under section 34, an applicant is prevented from filing an Application more than a year after the incident, or the last incident in a series, unless the Tribunal is satisfied that the circumstances in subsection 34(2) exist. For the reasons set out below, I have concluded that those circumstances do not exist here.

24Ms. Marchand was aware of all of the material facts alleged in the complaint by December 2001. She made a complaint to the Hospital’s Patient Affairs Department in March 2002 and in doing so suggested that she was aware that her allegations raised human rights issues. Ms. Marchand waited for a further 22 months before filing the complaint.

25Ms. Marchand states that Dr. Mourad’s letter in December 2003 is a further incident in a series of incidents of discrimination and occurred only weeks prior to the complaint being filed. I do not agree. As pointed out by Dr. Margulies, Ms. Marchand has never alleged that Dr. Mourad’s letter constituted an act of discrimination. It is not referred to in the complaint. It is not part of the complaint although it is arguably evidence supportive of Ms. Marchand’s allegations.

26The applicant also argues that the content of the letter from Dr. Mourad in December 2003 “crystallized” the complaint for her in that it confirmed that there was no factual basis for the impugned comments of Dr. Margulies in the discharge note. This submission is unsupported on the facts. Ms. Marchand made a complaint to the Hospital’s Patient Affairs Department in March 2002 and made it clear at that time that she believed that the comments in the discharge note were unsupported by any facts and were based on negative stereotypes about Aboriginal people. For these reasons, I find that the time for filing the complaint began to run in December 2001 when Ms. Marchand became aware of all of the facts alleged in the complaint.

27Ms. Marchand also states that the delay was incurred in good faith as she was medically incapacitated for all of that time and that it would have been “impossible” for her to file a complaint with the Ontario Human Rights Commission. I am not satisfied that this was the case. Although it is clear from the material that Ms. Marchand has or had a number of significant health concerns that may well have limited her functional capacity for periods of time, the fact that she made a complaint to the Hospital’s Patient Affairs Department belies the notion that she was medically incapable of filing a complaint with the Ontario Human Rights Commission. The respondent Hospital also relies upon the fact that during the period in question Ms. Marchand was actively pursuing records related to her adoption, retaining counsel for this purpose, and ultimately culminating in a civil action. I agree that this level of activity is inconsistent with an alleged inability to file a human rights complaint.

28Alternatively, Ms. Marchand states that it was not until she was supported by the Anishnawabe Health Clinic that she felt well enough to file the complaint at the Human Rights Commission. Again, the fact that Ms. Marchand was able to make a complaint to the Hospital directly in March 2002, belies the suggestion that she was unable to file her complaint sooner than she did.

29I am also not satisfied that the delay in filing the complaint would entail no substantial prejudice to the respondents. Ms. Marchand states that there is no prejudice to the respondents because she is relying on a written document - the discharge memorandum at the heart of the dispute. It is submitted that the discharge memo is an encapsulation of the medical chart which is also available. It is also submitted that there are no other witnesses required other than Ms. Marchand and Dr. Margulies who authored the impugned note.

30Ms. Marchand’s submission ignores the implications of Dr. Margulies’ position that the discharge memo is a summary of information gleaned from the medical chart. There are at least three references to Ms. Marchand’s consumption of alcohol in the chart, in histories taken by more than one individual. The references all indicate some, albeit limited, consumption of alcohol. The persons who took those other notes found in the chart have evidence that is relevant to the issues in dispute. Dr. Margulies states that she has no independent recollection of her involvement in Ms. Marchand’s care. This is not surprising given the passage of time. The passage of time will likely have affected the recollections of others involved in Ms. Marchand’s care, including the authors of the records contained in the chart.

31I find for these reasons that the applicant has failed to satisfy me that the circumstances in section 34(2) apply here and therefore the Application is out of time and is dismissed.

32In light of my conclusions on the delay issue, there is no need to consider the respondents’ other preliminary issues.

ORDER

33The Application is dismissed.