Lowry v. Royal Victoria Hospital, 2009 HRTO 879

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Lowry

Applicant

-and-

Royal Victoria Hospital

Respondent

INTERIM DECISION

Adjudicator: David A. Wright Date: June 22, 2009 Citation: 2009 HRTO 879 Indexed as: Lowry v. Royal Victoria Hospital

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). It alleges discrimination based on age and disability in the provision of goods, services and facilities. In his Application, the applicant states that he sent a questionnaire to the respondent, Royal Victoria Hospital, to assist in obtaining a family physician. He states that he has received no response. He alleges that the only possible reason is his age and health condition. He alleges that the questionnaire, which asks patients about their age and health conditions, permits physicians to select patients taking into account age and disability contrary to the Code.

2In its response, the Hospital states that the questionnaire to which the applicant refers was distributed by an organization called "The Barrie Area Physician Recruitment Task Force" (the "Task Force"). The individual named by the applicant as a contact person is the coordinator of that program (the "coordinator"). She 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 Response states that the Task Force recruited five physicians to the Barrie area to establish family practices, and patients 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 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 unopened ("the physicians"). It states that the physicians' medical practices are operated without any oversight or direction from the Hospital. The Hospital asks that the Application be dismissed on a preliminary basis.

4In his Reply, the applicant maintains his claim that the Hospital violated the Code. He states that the Hospital allowed the distribution of the questionnaire on its web site and on its premises, and that it pays the person who collects and passes the discriminatory applications to parties who then discriminate against others, and allows them rights to practice at the Hospital.

5I understand the applicant's argument, in light of the Hospital's Response, to be that the Hospital discriminated on the basis of age and disability in the provision of services by: (1) including the questionnaire on its web site; (2) providing it to patients; (3) paying the coordinator as a consultant; and (4) allowing the physicians hospital privileges. As I understand it, the applicant does not dispute the Hospital's factual assertions about the nature of its role in collecting the questionnaires. If this is not a correct interpretation of his Reply, the applicant should immediately write to the Tribunal advising which facts he disputes.

6Having regard to the respondent's request that the Application be dismissed on a preliminary basis, in my view the most fair, just and expeditious manner to proceed in these circumstances is to first determine whether it is "plain and obvious" that the Application cannot succeed. The Tribunal will hear oral submissions from the parties about whether, assuming the facts relied upon by the applicant and set out at para. 5 of this decision to be true, they support a finding that the Hospital discriminated against the applicant on the basis of age and/or disability in the provision of services.

7The Registrar is requested to schedule a conference call during which the parties may make oral submissions. The applicant shall make his argument first. If either party intends to refer to any case law or additional documents, they shall be delivered to the other party and filed with the Tribunal not less than one week prior to the conference call. The parties need not comply with Rules 16 and 17 prior to the conference call.

8I am not seized.