HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Charmaine Marshall
Applicant
-and-
Durham Regional Police Service and Glen Turpin
Respondents
A N D B ET W E E N:
Charmaine Marshall
Applicant
-and-
Lakeridge Health Corporation and Erik Paidra
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Marshall v. Durham Regional Police Service
1These are two Applications dated June 26, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), filed against the Durham Regional Police Service and Glen Turpin (“police respondents”) and Lakeridge Health Corporation (“Lakeridge”) and Dr. Erik Paidra. The underlying complaints were both filed with the Ontario Human Rights Commission on June 16, 2007.
2The purpose of this Interim Decision is to address three Requests for Order which have been filed by the respondents in this proceeding.
3The first Request for Order is dated April 30, 2010, and was filed by the police respondents seeking dismissal of the Application against them pursuant to s. 45.1 of the Code on the basis of the investigation of the complaint filed by the applicant under the Police Services Act, R.S.O. 1990, c. P.15.
4Pursuant to s. 43(2).1 of the Code, this Tribunal is prohibited from finally disposing of an Application that is within its jurisdiction without affording the parties the opportunity to make oral submissions. The dismissal of an application pursuant to s. 45.1 of the Code is not an indication that the application was not within this Tribunal’s jurisdiction, but rather is a determination that, though within this Tribunal’s jurisdiction, the substance of the application nonetheless was appropriately dealt with in another proceeding. As a result, the Tribunal is not able to make a final determination of the request for dismissal made by the police respondents until an opportunity for oral submissions has been provided, which will occur at the hearing on July 14, 2010.
5The second Request for Order is dated May 3, 2010, and was filed by Lakeridge, seeking dismissal of the Application as against it on the grounds that it does not disclose a prima facie case. Lakeridge submits that all of the applicant’s allegations relate to the medical care and treatment that she received after being brought to Lakeridge by the police on July 20, 2006, including being placed in restraints that were applied too tightly, taking too long to receive nursing care, how she was described by the nurse at shift change, and the nurse objecting to the manner in which the applicant was speaking to her.
6Lakeridge states that there are no statements or allegations contained in the Application or complaint in respect of how or when the applicant’s ancestry, colour, ethnic origin, marital status, place of origin, race or disability were raised or impacted upon the medical treatment she received. The only statements in the complaint which potentially relate to discrimination are two general statements in the introductory remarks, where the applicant states “I have had poor and inadequate medical help at this ER before and avoided it as much as possible. I wondered if discrimination caused the poor treatment” and “Oshawa is predominantly populated by white people”.
7Lakeridge notes that it first raised the issue of there being no prima facie case of a violation of the Code in the response to the complaint it filed with the Commission on August 1, 2007, which was appended to the Response filed in this proceeding on July 28, 2009. Further, in the Tribunal’s letter to the parties dated March 23, 2010, the applicant was invited to file a statement of any additional facts that she intended to rely upon at the hearing, and she did not do so. Still further, the applicant filed no materials or submissions in response to Lakeridge’s request to dismiss her Application for failing to set out a prima facie case of discrimination.
8In this case, in the absence of the applicant having filed any materials to support her allegation as against Lakeridge because of her race, ancestry, colour, ethnic origin, place of origin or marital status, I am not satisfied that the applicant’s complaint sets out sufficient material facts to support a prima facie case of discrimination so as to come within this Tribunal’s jurisdiction under the Code.
9Her complaint relates to the medical treatment she alleges she received at Lakeridge on the evening of July 20, 2006 and into the following day. This is reinforced by the remedies sought by the applicant, which include “financial compensation for physical & mental pain & suffering”, a review of how Lakeridge and staff treat people who they think are mental patients (I note in this regard that the applicant has not claimed discrimination because of actual or perceived disability), and “accountability for their blatant & unnecessary neglect to a restrained patient in their direct care”. Nowhere is there any claim of a remedy for discrimination on the grounds alleged. Still further, the applicant states that she has written up the incident and filed a complaint with the College of Physicians and Surgeons of Ontario and with the College of Nurses of Ontario, and that she intended to speak to the hospital patient representatives regarding this conduct, which further reinforces that the issue raised by the applicant is about the medical treatment that she received.
10The applicant’s general allegation at the beginning of her complaint that she had received poor and inadequate medical help at Lakeridge before and “wondered” if this was caused by discrimination is not, in my view, sufficient to support a prima facie case under the Code. “Wondering” about discrimination is not the same as having a belief that she had experienced discrimination, which was the minimal requirement as the basis for filing a complaint under the former Code. Further, the applicant does not in this statement identify the grounds of discrimination about which she was wondering, nor does she state any belief or basis for any belief that she experienced discrimination on the grounds alleged on the specific days in question. With regard to her statement that Oshawa is predominantly populated by White people, no basis has been provided by the applicant to indicate how this statement is relevant to the specific allegations she raised in her complaint.
11As a consequence, I find that the Application does not set out sufficient grounds to support the applicant’s allegations of discrimination because of her race, ancestry, colour, ethnic origin, place of origin or marital status, and is therefore not within this Tribunal’s jurisdiction. Accordingly, the Application as against Lakeridge is dismissed.
12The personal respondent Dr. Paidra did not file his own Request for Order seeking dismissal of the Application as against him, nor did he join in with Lakeridge’s request. However, all of the allegations raised against Dr. Paidra form part of the same complaint filed by the applicant as against Lakeridge and are part and parcel of the same series of events and circumstances. Accordingly, as the allegations as against Lakeridge are not within this Tribunal’s jurisdiction, so are the allegations as against Dr. Paidra. As a result, the Application is dismissed as against Dr. Paidra as well.
13The third Request for Order was filed on behalf of Dr. Paidra and seeks production of documents from the applicant. As the Application against Dr. Paidra has been dismissed, this request is now moot.
14The hearing will proceed on July 14, 2010, only in respect of the Application as against Durham Regional Police Service and Officer Turpin. I direct that this hearing will be restricted to hearing oral submissions regarding these respondents’ preliminary request to dismiss the Application pursuant to s. 45.1 of the Code. Accordingly, no witnesses need appear at the hearing to provide evidence regarding the substance of the applicant’s allegations until this preliminary issue has first been addressed.
15I am not seized.
Dated at Toronto, this 15th day of June, 2010.
“Signed by”
Mark Hart
Vice-chair