Magda v. Jaroszynski, 2010 HRTO 1342

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathleen Magda Applicant

-and-

Grzegorz Jaroszynski Respondent

CASE RESOLUTION Conference DECISION

Adjudicator: Jim Dimovski Date: June 14, 2010 Citation: 2010 HRTO 1342 Indexed as: Magda v. Jaroszynski

AppearanceS BY

Kathleen Magda, Applicant ) John Nelson, Counsel Grzegorz Jaroszynski, Respondent ) Carolyn Brandow, Counsel

1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges the respondent, an orthopaedic surgeon, subjected her to discrimination on the basis of disability, in the provision of his services, or in the course of her surgical consultation meeting with him.

2In addition to chronic knee and hip conditions, the applicant lives with HIV and Hepatitis C. In March 2006, on referral from her family physician, she traveled from Sudbury to Burlington, accompanied by a friend (BR), to meet with the respondent in order to discuss whether she was a candidate for right knee replacement surgery. The respondent recommended against surgery. The applicant alleges that, at the outset of her meeting with him, he asked about her HIV and Hepatitis C, then, did not perform a physical examination of her and provided confusing and contradictory comments to her. She alleges that the respondent failed to examine her and refused to perform surgery because of her HIV and Hepatitis C.

3In addition to denying the applicant’s allegations, the respondent requests that the Application be dismissed on the basis that the same facts had been dealt with in a proceeding before the College of Physicians and Surgeons of Ontario (“CPSO”). In a decision dated January 2007, the CPSO’s Complaints Committee declined to take any action against the respondent. As such, the respondent requests that this Application is dismissed in accordance with s. 45.1 of Code.

4A Case Resolution Conference (“CRC” or “hearing”) was held on October 20, 2009, in Sudbury.

5While the applicant’s counsel appeared at the hearing, the applicant herself did not appear as expected. At the outset of the hearing, her counsel advised that he did not know the applicant’s whereabouts even though he had visited her residence, buzzing and knocking on her door, and had attempted to telephone her numerous times. He sought and received a delay in the proceedings in order to visit the local hospital in case she had been hospitalized.

6After approximately an hour, counsel returned to advise he had been informed that the applicant had been recently discharged from hospital but that he still could not locate her. After asking for submissions from the parties on how best to proceed, including whether the applicant’s Application should be dismissed, counsel agreed to accept the applicant’s written statements, contained in her Application, as her evidence-in-chief. As a result, I heard the parties’ submissions and the respondent’s testimony upon which he was cross-examined.

7Sometime after the hearing, counsel wrote to the Tribunal and asked that this matter be reconvened so that the applicant could testify. This Request is addressed below. I will first provide further background and then address whether this Application is barred in accordance with s. 45.1 of the Code.

Additional Ground

8In his closing submissions, applicant’s counsel argued that the record disclosed the respondent had also discriminated against the applicant on the basis of age. This ground is not included in the complaint as filed with the Commission and there was no request to amend the Application sought.

9The transitional provisions of the Code are intended to deal with the subject matter of complaints filed with the Commission prior to June 30, 2008. The legislative intention as set out in the transition provisions is that section 53(3) applications should be dealt with in a highly expeditious manner. To that end, the Tribunal developed Rules to foster a fair, just and highly expeditious process. In particular, Rule 6.3 states:

Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to add grounds, expand the subject matter of the complaint or add parties to the Application.

10In my view, it would detract from the fair, just and expeditious nature of the proceedings to permit the addition of another ground at the point of closing submissions. This is consistent with the Tribunal’s very strict approach to requests to amend transitional applications. See, for example, Gwyn v. Toronto (City), 2009 HRTO 2135.

BACKGROUND

11In February 2006, the respondent was given an opportunity to perform additional joint replacement surgeries as part of the government of Ontario’s Health and Long Term Care’s initial Wait Time Strategy for hips and knees. The access was well above his typical access to hospital resources and as a result he was in a position to seek out patients for such surgeries. After contacting the applicant’s family physician about potential candidates, the respondent received a referral note dated February 10, 2006, for the applicant, as well as other medical documentation about her. This referral note advised the respondent that the applicant had right knee osteoarthritis, due to previous motor vehicle accident, as well as HIV and Hepatitis C.

12On March 2, 2006, the applicant met with the respondent at his office for a surgical consultation. In her Application, she alleged the “first thing” the respondent referred to was her HIV and Hepatitis C status, to which her reply was that it was not relevant for the medical issue in question. In her view, the respondent failed to provide a “coherent answer” for his question. Upset, the applicant then called her friend BR, into the office. She claimed that during the course of her examination, the respondent failed to physically examine her, or touch her at all, or perform any other testing which necessitated her personal attendance. In her view, the respondent also made confusing and contradictory statements attempting to make an excuse for not operating on her. These statements included: that a knee replacement would not work; that she was too young for such a replacement; and that her condition was irreversible and that she would end up in a wheelchair.

13The respondent testified that, based on the referral note sent to him by applicant’s family physician, he thought there was a reasonable possibility, considering the applicant’s past injury, she had developed post-traumatic arthritis in her right knee which would make her a candidate for knee replacement surgery. As a result of the referral note, he was aware that the applicant had HIV and Hepatitis C and that it did not prevent the consultation from occurring. In his recollection of his meeting with the applicant, he asked the applicant about her accident history regarding her knee, the status of her HIV and Hepatitis C infections, and performed a physical examination of the applicant, as well as reviewing x-rays which had been taken earlier in the day. After all of this, he determined and informed the applicant that she was not an appropriate candidate for knee replacement surgery. He specifically denied advising the applicant she would be wheelchair bound in the future.

14The respondent acknowledged that he asked about the status of the applicant’s HIV and Hepatitis C since it was directly relevant to whether she would be eligible for such surgery. If in an active stage causing immunosuppression, they would have prevented the surgery due to a very real risk of further infection. Patients with immunosuppresion are not candidates for surgery regardless of their condition. He also stated he asked these questions in order to understand her most up-to-date status with her infections’ since it was integral to the decision to operate.

15As documented in his consultation note dated March 2, 2006, the respondent had noted that the applicant had problems with her right leg, sustaining a distal femoral fracture in 1977 as result of a car accident which had required surgery. After noting the applicant’s infections were in remission, and after noting the applicant walked with a cane, the respondent observed that there was no joint effusion, some crepitus and tenderness as well as a preserved range of motion. Also, earlier that day, the applicant had taken x-rays, which he accessed from his office computer. In reviewing them, he noted the applicant’s fracture had healed and that there was no significant amount of arthritis at the knee necessitating a replacement.

16As a result, the respondent confirmed his conclusion as stated in his consultation note, that the applicant was not a good candidate for knee replacement due to the combination of her age and the minimal amount of arthritis in her knee. Artificial knees do not last forever, therefore, if the joint’s condition is not significant enough and to the degree that surgery can be avoided until a time when it can be realistically assumed that there would be no need for another replacement surgery in a patient’s lifetime, the decision not to operate is more likely recommended. He stated he explained this to the applicant. In his testimony, he noted the applicant’s condition involved a pain condition as opposed to a knee condition which would necessitate surgery.

17After the consultation meeting, the applicant filed a complaint, now the Application before this Tribunal, with the Human Rights Commission dated August 16, 2006. She also formally complained to the CPSO in a letter from her counsel, dated August 30, 2006. In particular, the applicant’s counsel had submitted that the respondent had been subjected to discrimination “because of her HIV and Hepatitis C status” by “not conducting a physical examination and deciding not to proceed with a knee replacement surgery”; and that the respondent made comments during her appointment which were “unprofessional and upsetting to her”.

18In its written decision dated January 2007, the CPSO Complaints Committee determined that the respondent had conducted a reasonable examination and in her case that he had not exercise his judgement “inappropriate or unreasonable manner, or that he was in any way influenced by improper considerations” such as her HIV and Hepatitis C status. Despite the different accounts of the March 2, 2006 consultation, the Committee was unable to conclude that the respondent’s communications with the applicant were inappropriate.

19The CPSO Committee based its decision on the following: a letter of complaint and additional correspondence from the applicant’s counsel; a memorandum of a telephone conversation with the applicant’s counsel, dated September 27, 2006; and the applicant’s medical records (received from the respondent).

Is the CPSO decision sufficient to bar this Application?

20The parties agreed to provide submissions on the respondent’s Request to have the Application dismissed and that I would reserve deciding the issue while hearing the merits and submissions regarding the applicant’s allegations, knowing that if I decided to grant the Request to dismiss I would not address the merits of the Application.

21The CPSO is the regulatory agency for physicians in Ontario. The Complaints Committee receives and investigates complaints brought by the public against the CPSO’s members. The Health Professions Procedural Code outlines the role and responsibilities of the CPSO and the Complaints Committee in handling complaints from the public.

22If the Complaints Committee does not refer a matter to the Discipline Committee, the complainant has the right to ask for a review of the decision by the Health Professionals Appeal and Review Board (“HPARB”), which is an independent adjudicative agency. The respondent noted that the Statutory Powers Procedure Act applies to complaint review hearings before the HPARB and that body has jurisdiction and responsibility to apply the Code.

23In this matter, the applicant did not pursue a review of the Complaints Committee decision.

24Section 45.1 of the Code reads as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

25In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some of the principles that apply to the interpretation of s. 45.1 which include:

• Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;
• The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrine of issue estoppels and abuse of process;
• In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;
• The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as was reached in the other forum.

26In Campbell the Tribunal went on to state that it was helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application. In this matter, there was no dispute that the subject matter of the Application before the Tribunal is in substance the basis for the applicant’s complaint to the CPSO.

27Essentially, the respondent submits the CPSO appropriately investigated, with the applicant’s input and participation, and then made a determination, within its jurisdiction, regarding the substance of the applicant’s human rights allegations about the respondent that are now before this Tribunal. While she acknowledged that the Complaints Committee’s human rights analysis was not particularly fulsome, respondent’s counsel argued that it made findings which denied a human rights violation had occurred. In her submission, the facts and principles in this matter were similar to those in Campbell and thus applicable to this matter. She argued if the Tribunal were to dismiss the respondents’ Request, it could lead to a different decision than the one made by the CPSO, and as such would put the system in disrepute.

28Applicant’s counsel submitted the human rights allegations were not appropriately dealt with since the CPSO process prevents the applicant from obtaining a remedy in relation to human rights complaints. Further, he submitted that a review of the Complaints Committee’s decision does not support it made any findings with regard to the applicant’s allegations about the March 2, 2006 meeting. He noted that the Complaints Committee specifically stated it was unable to make a finding with respect to the different versions outlined by the parties.

29After reviewing the parties’ submissions, although I am satisfied that the CPSO Complaints Committee process was a proceeding within the meaning of s. 45.1 of the Code, I am not satisfied Committee’s decision “appropriately dealt” with the substance of the Application before the Tribunal. Accordingly, I deny the respondent’s Request to dismiss. My reasons are set out below.

30In my view, the central question in this matter is whether the allegations raised in the human rights complaint were “appropriately dealt with” since the parties did not dispute, and I am satisfied, that the allegations in the CPSO process mirror those contained in the Tribunal Application.

31As noted in Campbell, I am not required to make a finding as to whether or not I agree with the findings of the CPSO decision. Indeed, the Tribunal is not an appellate body for such complaints. Instead, in my view, the question is whether the CPSO review and decision were conducted using a fair process, in which the applicant had an opportunity to present her allegations and introduce evidence, and whether the Committee considered the human rights elements of the dispute in reaching its decision.

32After my review of the Complaints Committee decision, I am not satisfied that the decision shows the Committee considered whether the respondent treated the applicant differently due to her disability in the course of his consultation with her. Rather the Committee concluded that:

Regarding the allegations pertaining to Dr. Jaroszynski’s demeanour and communications towards Ms. Magda, the Committee is faced with two contrasting versions of events (the one from Ms. Magda and [BR], the other from Dr. Jaroszynski), and we have nothing before us to assist us in preferring one version over another. That being so, we are unable to conclude whether Dr. Jaroszynski was in any way inappropriate in his communications with Ms. Magda, and we are therefore not prepared to take any further action in this regard.

33While the Committee might have made findings whether anything in the conduct of the consultation disclosed a differential treatment based on disability it expressly chose not to do so. In the circumstances I cannot find the human rights issues in dispute have been appropriately dealt with. The respondent’s Request to dismiss the applicant’s Application is denied.

The Applicant’s Request to Testify

34In his correspondence dated November 7, 2009, the applicant’s counsel advised that about a week after the hearing the applicant had contacted him and explained she had been hospitalized on the day of the hearing. As she was hospitalized due to her disability, he submitted that the Tribunal should accommodate the applicant and re-open the CRC to allow her to testify. He submitted that, since the case rested on credibility, it was important that the applicant testify and be cross-examined.

35In his subsequent correspondence dated December 7, 2009, applicant’s counsel clarified that records support the applicant had visited the hospital the day before the hearing but he could not establish what happened after or when she was discharged. He noted the applicant’s account of the day of the hearing was hazy. He advised that the applicant had been hospitalized during the evening of October 20, 2009 and attached those records.

36In her correspondence dated November 10, 2009, the respondent’s counsel characterized the applicant’s Request as a motion for reconsideration of an interlocutory decision and since there is no provision for such a motion under the Tribunal’s Rules of Procedure (“Transitional Rules”), it was inappropriate. If the Tribunal considered the reconsideration request, she reserved the right to make substantive submissions on the Request. In correspondence dated April 29, 2010, she reiterated her position.

37After considering the parties’ submissions, including Mr. Nelson’s letter dated May 19, 2010, I am not prepared to re-convene the hearing. The applicant did not appear at the hearing on the scheduled time and date. On the day of the hearing, counsel was given time to attempt to locate his client and he was unable to do so. It appears from the subsequent information provided she was not hospitalised at the time of the hearing. The Tribunal might have dismissed the Application based on the applicant’s failure to appear but, rather, the parties both agreed on a process by which the hearing could proceed. Since the process was agreed to by counsel and the hearing was conducted on the basis of that agreement, the respondent was examined and cross-examined and I heard final submissions, I am not satisfied that it would be fair, just and expeditious in all the circumstances to reopen the hearing.

The Human Rights Analysis

38After applying the applicable legislation, and weighing the relevant evidence and considering the parties’ submissions, I dismiss this Application for the following reasons.

39There is no dispute that the applicant has a disability as recognised under the Code.

40The applicant’s evidence does not disclose any direct incidents of discrimination or discriminatory statements. However, discriminatory actions are often by their nature, actions which can be incapable of direct proof. As such, it may become necessary to infer discrimination from the conduct of an individual.

41The issue here is whose version of the consultation is more credible. While the applicant’s evidence that she felt the respondent’s explanations and responses confusing and contradictory is accepted, the respondent’s evidence is consistent with his contemporaneous notes prepared before either the CPSO complaint of the human rights complaint were filed and other documentary evidence.

42In his testimony, the respondent stated he had hoped, while aware of the applicant’s HIV and Hepatitis C status, to perform surgery based on his understanding of the applicant’s knee condition. I am satisfied this supports the respondent’s position the applicant’s disabilities were not a barrier to her consideration as a candidate for surgery provided her status was such that surgery could be performed without increasing risk to her.

43The evidence to support the respondent’s assessment of the applicant was based on the evaluation of her knee joint and unaffected by her HIV or Hepatitis C is compelling. The respondent’s testimony was consistent with his consultation report dated March 2, 2006. I am satisfied it reflects a complete and accurate record of his reasons for not performing the surgery. These reasons are supported by the other medical opinions in evidence, in particular that of Dr. T.H. Wallace dated September 12, 2009, which incorporated and addressed the applicant’s allegations.

44The applicant’s allegation that she was not examined cannot be squared with the documentary evidence. The respondent was cross-examined on this point and his evidence that he conducted a physical examination was not shaken. I find that the preponderance of evidence supports that her right knee was examined and that tests were performed. It is clear from the evidence her knee was x-rayed on March 2, 2006, in a clinic located in the respondent’s office building. The respondent testified that the results of the x-ray were pivotal to his recommendation. Additionally, the consultation note dated March 2, 2006, provided physical findings of her knee which I am satisfied were the result of a medical examination sufficient to support the respondent’s conclusion the applicant was not a candidate for surgery.

45The respondent admitted that he asked the applicant about her HIV and Hepatitis C status. I am satisfied, that question, contrary to the applicant’s assertion, was directly relevant to an assessment of the applicant’s risks if she proceeded with surgery. The expert evidence that surgery could lead to further infection and other serious complicating factors if the applicant was immunosuppressed was not challenged. In any event, the respondent’s testimony, consistent with his consultation note, indicated that the applicant’s HIV and Hepatitis C status was in “remission”. In light of the medical evidence and testimony I heard from the respondent, I am satisfied that such a notation meant that the applicant’s HIV and Hepatitis C status did not prevent surgery and thus could not have been interpreted as a factor for avoiding surgery. Accordingly, I do not find that the reasons the respondent did not perform surgery were related to her HIV and Hepatitis C status as alleged by the applicant.

46While the applicant’s expectation of her consultation meeting may not have been met, and the questions about her HIV and Hepatitis C may have upset her, the consultation report supports that medical findings required to assess whether surgery was appropriate were obtained by the respondent and consistent with the objective evidence such as the x-ray.

47I am troubled by the allegation the respondent suggested the applicant was wheelchair bound. The respondent denied making this statement and was not shaken on this point on cross-examination. Indeed, he testified the physical findings displayed by the applicant, and those found in the record, would not support an opinion that she would be wheelchair bound. In the circumstances I am not satisfied on a balance of probabilities the respondent made this statement.

48Accordingly, I do not find persuasive evidence to support that the respondent treated the applicant differently on the basis of her HIV and Hepatitis C status in the course of his consult meeting with her on March 2, 2006. Nor am I persuaded that the applicant’s HIV and Hepitatis C status was a factor in the respondent’s decision not to operate on the applicant. Thus, I am not satisfied that an inference of discrimination would be justified in this matter on the ground alleged by the applicant.

49In all the circumstances, I dismiss this Application.