HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nady Girgis
Applicant
-and-
Credit Valley Hospital, Jackie Rodricks, Christine Tang and Tamara Teeter
Respondents
Case resolution conference decision
Adjudicator: Mark Handelman
Indexed as: Girgis v. Credit Valley Hospital
AppearanceS BY
Nady Girgis, ) on his own behalf Applicant )
Christine Tang, ) Charles A. Painter, Respondent ) Counsel
Credit Valley Hospital, Jackie Rodricks ) Michele Warner, and Tamara Teeter, ) Counsel Respondents )
Background and Procedure
1This is an Application filed December 1, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on August 4, 2007 and abandoned upon filing this Application with the Tribunal.
2This hearing was conducted in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner given they are often based on complaints, like this one, which are more than a year old by the time they reach the Tribunal. To that end, the witnesses adopted their written statements filed in advance and the hearing proceeded with minimal examination and cross-examination. The hearing took place on May 15, 2009.
Nature of the Dispute
3When the applicant went to the emergency department at the Credit Valley Hospital, he did not like the way staff behaved toward him. He concluded that he was being singled out for discriminatory treatment, either because of his age or his place of origin. At the time, the applicant was 60 years of age and identified his place of origin as Egypt. He complained to the hospital ombudsman but was unsatisfied with the time it took to get a response, and with the response itself. He then brought the original complaint to the Human Rights Commission.
Decision
4I dismissed the Application at the end of the Case Resolution Conference (CRC). These are my reasons for doing so.
Preliminary Matters
5At the start of the CRC, both counsel for the respondents asked me to dismiss the Application on the grounds that it disclosed no prima facie case of discrimination under the Code. I declined and they raised their motion again after the applicant closed his case but before they called evidence. I dismissed their motion a second time. After hearing his evidence, I was not satisfied the respondents had shown the applicant’s allegations failed to set out a prima facie case of discrimination and therefore the respondents were required to provide a non-discriminatory explanation of their conduct.
6To be successful, a motion for dismissal for failure to establish a prima facie case requires that I assume the applicant will prove each of his allegations, but even having done so, still cannot be successful in his Application.
7There was also an issue about whether or not Tamara Teeter was a named respondent in this Application. She was not named in the Application. Counsel advised me during the hearing that she was added as a respondent but there is no Tribunal order to that effect on the file. She attended and participated in the CRC. In the circumstances, I have added her as a party and the style of cause has been amended accordingly.
Background
8The applicant testified in detail about what happened to him at the hospital on the day in question. The applicant explained that he did not complain at the time because he did not wish to antagonize the health care professionals who were treating him.
9Ms. Dayes, the hospital ombudsman, was not involved in the applicant’s treatment and had no direct knowledge of the alleged incidents. The individual respondents were all emergency department specialists. In 12-hour shifts they saw 30 to 50 patients a day. They had no detailed recollection of the alleged incidents. The incidents were not brought to their attention until after the applicant’s complaint some weeks later to Ms. Dayes. In the circumstances, their lack of detailed recollection was not surprising.
10On February 14, 2007, the applicant went to the respondent hospital for treatment in the emergency department. A few days earlier, his foot swelled painfully and noticeably. His community physician sent him to a clinic for an ultrasound of his foot. At the clinic, staff sent him straight to hospital. The concern was that the applicant had a “deep vein thrombosis” (blood clot), blocking flow of blood out of his foot. It could come loose and travel through his veins to a major organ. The consequences would be life threatening.
11When the applicant got to the emergency department, he gave his name, explained his problem and took a seat. Then, a nurse came and called the applicant and two other patients. The applicant’s name was the first called. The nurse took the three patients to the “fast track” part of the emergency department. There, another nurse called the three names and assigned each patient to a bed. However, the applicant’s name was called second, instead of first. While he did not think anything of this at the time, retrospectively the applicant concluded that this was the start of discrimination against him. None of the respondents could explain why the applicant’s name was initially called first then called second when beds in the fast track section were assigned to the applicant and the other two patients with him.
12The nurse who assigned the applicant to a bed told him to remove his clothes, which he did, except for underwear and shoes. Again, retrospectively, the applicant concluded this was part of a scheme of harassing him, because he was there to have his foot treated, so why should he have to remove his clothes?
13While the applicant was sitting on his assigned bed, with curtains separating him from the patients on either side, Dr. Tang came. She opened the curtain and said, “anyone there?” According to the applicant, she said this at the same time as she was yanking the curtain open, or possibly after. Dr. Tang said her usual practice was to ask who was behind the curtain before opening it. She did this frequently to ensure there was someone in the bed so she would not have to wait to see the next patient.
14After assuring herself that the second bed was occupied (by the applicant), Dr. Tang then went to treat the patient in the first bed. According to the applicant, she moved around that bed a few times then directed the patient in it to move to another spot on the bed. This spot was on the side of the bed closest to the applicant’s bed. While this was going on, the curtain was drawn around the applicant’s bed, but it only reached down to approximately the top of the mattress.
15Since the applicant was sitting on the side of the bed closest to patient one, his feet protruded under the curtain. Dr. Tang tried to move patient one’s bed farther from the applicant’s, but even though on wheels, the beds are heavy. As she was doing this, she touched or brushed the applicant’s feet. According to the applicant, Dr. Tang shouted, “Who’s there?” The applicant said he responded, but Dr. Tang already knew he was there.
16Dr. Tang called a nurse to help her move the beds apart. The applicant says Dr. Tang told the nurse to help move the bed because she didn’t want to get dirty. According to the applicant, this was a slur against him because the dirt of which Dr. Tang spoke was metaphorical dirt. The applicant testified that the dirt to which Dr. Tang referred was his kind of people, they were dirty.
17Since she had no specific recollection of the incident, Dr. Tang had trouble rebutting the facts the applicant alleged. She testified that, generally, cleanliness was important to her and agreed she might well have asked a nurse to help her separate the beds because this was not unusual. She might have referred to dirt but she denied the reference would have been to anything but dirt (as commonly thought of) or germs.
18After 10 or 15 minutes, Dr. Tang returned to treat the applicant. The applicant says she introduced herself to the first patient, but not to him. He says she just came in and looked at his foot but did not touch any part of his body. Then she told him to get dressed.
19Dr. Tang denied she would have said anything discriminatory or treated the applicant any differently than any other patient. She said she was born in Trinidad and was herself of Chinese origin. She finished medical school in 1982 and since then had been an emergency physician in Montreal and Ontario. She had worked at Credit Valley Hospital since 1992. She said the applicant was no more nor less than another patient who came to her for help and she treated him. She had no recollection of being aware that the applicant was Egyptian by origin. She could have determined that by looking up his hospital records on the computer. Origin is recorded since some diseases and/or illnesses tend to be more common in people from certain places.
20While the applicant did not offer this evidence, it is clear from the documentary evidence that Dr. Tang made notes on his chart and ordered blood tests, two injections of a powerful blood thinner and a further ultrasound.
21The blood tests required taking blood from the applicant’s arm. The blood thinner had to be injected into the applicant’s abdomen.
22Ms. Teeter was the first nurse to attempt taking blood from the applicant. According to him, she watched him putting his sweater back on, smiling all the time, then approached him and asked him to remove it so she could take blood.
23The applicant testified that this respondent was smiling because she knew she was about to ask him to remove his sweater again and this was also harassment. Ms. Teeter has been a nurse since 1995 and worked in this emergency department about two and a half years. She denied knowing the applicant was Egyptian, said her treatment of him was not influenced by his origin or age and had no idea why the applicant would have viewed her smiling at him in anticipation of asking him to remove his sweater as harassment. She speculated that she was simply smiling as the clerk handed her the order to draw blood from the applicant.
24The applicant was also unhappy that Ms. Teeter tried to take blood from his forearm rather than from the inside of his elbow. Ms. Teeter speculated that she went to the forearm because the vein was more apparent there and drawing blood would be easier.
25The applicant also complained that Ms. Teeter tried twice to hit a vein in his forearm, but missed both times then left him. He viewed this as part of the scheme to harass him. Ms. Teeter said that was hospital procedure: if a nurse missed two attempts to draw blood, she handed the assignment to another nurse. The applicant also complained that, in attempting to hit a vein in his forearm, this respondent changed the angle at which the needle went into his arm, which hurt him, also part of the scheme to harass him. This respondent said that was common practice: you drew the needle back and “reangled” it in an attempt to it a vein.
26Ms. Rodricks was the next health practitioner involved with the applicant. She took over from Ms. Teeter in the attempt to obtain a blood sample from his arm. She was a nurse who graduated in 1985, joined the respondent hospital’s staff in 1986 and had been an emergency nurse there since 1989. She had no independent recollection of her involvement with the applicant, but did recall a note on his chart entered the day he was treated at 6:10 p.m., as he was leaving, that he wanted to make a complaint about the way blood was drawn.
27Ms. Rodricks obtained a blood sample from the applicant’s arm. The applicant complains about that also, because he was bleeding after she extracted the needle, blood was dripping off his arm and onto the bed. Ms. Rodricks said this would be unusual but not unheard of. It would happen if pressure was not applied quick enough to the puncture wound. She said that her usual practice was to first secure the needle by sliding the point guard up around the point and then attend to the puncture wound. (Hospitals now use syringes with needles that have a point guard to protect against accidental punctures.)
28Ms. Rodricks then injected the applicant twice in the abdomen with a blood thinner. The applicant complains about this also, as she would not give him a bandage for these puncture wounds. Ms. Rodricks has no specific recollection of treating the applicant, but said she has given “thousands” of injections of this medication. She said bleeding was infrequent, usually just a drop or two. It is not standard practice to bandage this puncture wound because the nature of the blood thinner is such that a bandage would make the bruising last longer. In reply evidence, the applicant said he had been injected with this same medication many times and never experienced bruising.
29Ms. Rodricks had no recollection of ever previously meeting the applicant and was not aware of his origin. She denied treating him any different than any other patient over the approximately 15 minutes she spent with him.
30In all, the applicant was in the hospital about two hours. The record of his visit shows his arrival as 16:02, shows that Dr. Tang saw him at 17:15 and by all accounts he was on his way about 18:10. He had to return the next day for a further ultrasound of his foot because the ultrasound clinic was closed for the day by the time he could have been ready to go to it.
31The respondent Ms. Dayes was and is the hospital ombudsman. The applicant alleges she was also part of the scheme to harass him. According to this respondent, her first involvement was when she received a lengthy complaint from the applicant by email on February 22,2007. She spoke with him by telephone that day and thereafter sent notes to the supervisors of the staff involved. According to the applicant, he was advised the complaint would take up to six weeks to investigate. On April 6, which was seven weeks after this response, he sent a follow-up email and received an automatically generated “out of office” reply. He sent another email on April 11 and the next day was informed by email that a nurse manager would contact him.
32The applicant says he received an email from said nurse manager. In his Application, he described this email as an “insult dressed as an apology,” which I took to mean that he viewed this email as part of the hospital’s ongoing harassment of him. Unhappy with the complaint resolution process, the applicant commenced this Application on August 4, 2007. By way of remedy, he asked for $200,000 in general and punitive damages, apologies from each staff member and an assurance that such episodes would not happen again.
Analysis
33To be successful, the applicant must show on a balance of probabilities that the events complained of constitute harassment based upon a ground of discrimination enumerated in the Code. He failed to meet that test.
34While I thought the applicant testified honestly as to the events that took place, there was no evidence anywhere to support the inferences he drew or the conclusions he reached.
35I also thought the respondents, Ms. Dayes and Ms. Teeter all testified honestly. It was no surprise that the health practitioners had poor recollection of the events that took place because they could not have been aware of these allegations of discriminatory behaviour until their supervisors received that information from Ms. Dayes sometime after February 22. That was at least a week after they treated the applicant: they see 30 to 50 patients each day and it is entirely plausible that individuals blur in memory, even after a week.
36The applicant was 60 years old at the time of this incident. None of the evidence identified why or how his age played any role in the way he was treated. The allegation of discrimination based on age allegation simply fails.
37The applicant provided no evidence to suggest his appearance or actions on the day in question would identify him as of Egyptian origin. Therefore, in order to determine the applicant’s origin, Dr. Tang and the nurses would have had either to ask him or look up his computer-generated patient history.
38The applicant did not allege that anyone in hospital on February 14 asked him about his place or country of origin. That information must therefore, according to the applicant, have come from his patient history. However, there was no evidence that the applicant’s origin was in any way related to his presenting condition.
39When Dr. Tang made the comment about not wanting to get dirty, which is the nub of the applicant’s complaint about her, she was treating the patient in the bed next to the applicant. She had not yet started treating the applicant. There is no evidence she had reviewed the applicant’s chart or computer medical history prior to commencing her examination of him or the patient in the bed next to him.
40So, at the time Dr. Tang made the comment and asked that the beds be moved, I am satisfied on a balance of probabilities she had not seen the applicant or his patient history and therefore would have no way of knowing or suspecting his origin. I accept Dr. Tang’s explanation of her comment and her actions that day as more reasonable in all the circumstances.
41On the same basis I am satisfied that the respondents’ nurses were unaware of the applicant’s place of origin and accept their explanation of the events in question as reasonable in all the circumstances. There was no evidence at all to support an allegation that the three of them decided together to harass the applicant because he is originally from Egypt.
42While I am concerned by the delay in response from Ms. Dayes as hospital ombudsman and consider six weeks is not an example of good service, there is no evidence that the delay resulted from any differential treatment based on the application’s place of origin, nor any evidence that the applicant’s complaint took longer to address than those of other patients.
43In the circumstances of this case, I am satisfied the respondents have provided a non-discriminatory explanation of the allegations.
ORDER
44The Application is dismissed.
Dated at Toronto, this 1st day of June, 2009.
“Signed by”
Mark Handelman