Villella v. Regional Municipality of York Emergency Medical Services Branch, 2010 HRTO 1810

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jessey Villella

Applicant

-and-

The Regional Municipality of York Emergency Medical Services Branch,

Ben Thompson and Joseph Neumayer

Respondents

A N D B E T W E E N:

Jessey Villella

Applicant

-and-

The Regional Municipality of York Police Services Board

and Vernon Ward

Respondents

A N D B E T W E E N:

Jessey Villella

Applicant

-and-

Her Majesty the Queen in Right of Ontario

as represented by the Ministry of Health and Long-Term Care

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: September 2, 2010

Citation: 2010 HRTO 1810

Indexed as: Villella v. Regional Municipality of York Emergency Medical Services Branch

1These are three Applications made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the Code), all dated June 29, 2009. The underlying complaints were all filed with the Ontario Human Rights Commission (the “Commission”) on June 28, 2007.

2The Applications all allege discrimination because of race, ethnic origin, creed and sex in the provision of services, arising out of an incident in the early morning hours of January 1, 2007, where the applicant sustained injuries from an altercation at a New Year’s Eve party.

3The purpose of this Interim Decision is to address the Request for Order filed by the respondent Ministry of Health and Long-Term Care (the “Ministry”) for dismissal of the Application filed against the Ministry. I also will address various case management matters arising out of the materials filed in this proceeding.

Request to Dismiss

4The Ministry has requested that the Application against it be dismissed on the basis that the facts alleged in the complaint do not establish any basis to support a finding that the Ministry violated the Code. While the Ministry has framed its request in terms of the failure of the Application to set out a prima facie case of discrimination, a request to dismiss of this nature, which proceeds on the basis that the facts alleged are presumed to be true and capable of proof, is based on an argument that the Application is not within this Tribunal’s jurisdiction. As such, I am prepared to deal with the Ministry’s request in writing in accordance with s.43(2).1 of the Code.

5As stated above, all three Applications arise out of injuries sustained by the applicant and the manner in which he was treated by the various respondents in the early morning hours of January 1, 2007. The Application against The Regional Municipality of York Emergency Medical Services Branch (“York EMS”) pertains to the actions of the paramedics who attended the scene, and the Application against The Regional Municipality of York Police Services Board (“York Police”) pertains to the actions of the police officers on the scene.

6With regard to the Ministry, the complaint alleges “no one from the Ministry of Health attended at the scene to ensure that the basic necessities of life, i.e. medical care, was given to me” and that “no one from the Ministry of Health came to assist me during this crisis”, and requests as a remedy that “the Ontario Ministry of Health should have been suspended and discipline (sic) for their blatant discriminatory treatment towards me, and denial of basic necessities of live (sic) that I was not provided”.

7The Ministry notes that it does not own or operate the York EMS or the York Police and does not employ paramedics. York EMS and the York Police are operated by the Regional Municipality of York and paramedics are employed by the Municipality. The Ministry is not responsible for providing medical care to the public and no employee of the Ministry is employed for the purpose of directly providing medical care to Ontario citizens. The Ministry submits that there is no legal obligation, statutory or otherwise, which required anyone from the Ministry to attend the scene to provide emergency medical care to the applicant.

8In response, the applicant states that the Ministry’s request should not be considered because too much time had passed before the request was filed and the Ministry took other steps in this proceeding. In this regard, I note that the Ministry’s objection was first raised in the Response it filed on July 31, 2009, with the formal Request for Order filed after it became clear that this matter would not proceed to mediation. There is nothing improper in the timing of the filing of the Ministry’s request and no basis upon which it should not be considered.

9The applicant further alleges in his response that while he was in the hospital, his father contacted the Deputy Minister and the Minister for the Ministry of Health to get information about the incident in order to help save the applicant’s life, and to have the Ministry investigate the alleged refusal by the paramedics to medically assist and transport the applicant and to investigate the applicant’s allegations of discrimination. The Ministry did investigate a complaint made by the applicant’s father that the York EMS failed to provide care or transportation to the applicant, and concluded that there had been a failure by one of the York EMS paramedics to perform an appropriate assessment and documentation of the encounter with the applicant on the date in question.

10The applicant in his response raises an allegation that the Ministry did not deal with his discrimination complaint and has failed to provide an appropriate reason for not doing so. The problem with this submission is that this is not an allegation raised in the complaint. Pursuant to s. 53(5) of the Code and the Tribunal’s Rules, a transitional application is restricted to the subject-matter of the complaint as filed with the Commission. While the complaint makes reference to the fact that a complaint was made to the Ministry in the section of the form that asks, “what have you done, if anything, to stop the discrimination?”, no allegation is raised in the complaint relating to any alleged failure by the Ministry to conduct a proper investigation. Rather, the allegations against the Ministry in the section of the form that asks, “what are you complaining about?” all appear to be premised upon a misunderstanding that Ministry representatives ought to have attended the scene to provide medical assistance to the applicant.

11In my view, the substance of the Application against the Ministry is that Ministry representatives discriminated against the applicant as a result of the failure of Ministry representatives to attend the scene or provide direct medical assistance to the applicant. I accept the submissions of the Ministry that this is not the Ministry’s legal obligation or role in relation to the provision of health care in this Province. Accordingly, as there is simply no factual or legal foundation to support the allegations of discrimination against the Ministry, I find that the Application against the Ministry is not within this Tribunal’s jurisdiction.

12Accordingly, the Application against the Ministry is dismissed.

Case Management

13This proceeding is scheduled to proceed to a hearing on November 16, 2010. I note that in the Responses filed by the York EMS and the York Police, issues are raised in relation to the substance of the Applications already having been dealt with in other proceedings and the failure of the Applications to set out a prima facie case of discrimination on the grounds alleged.

14Section 45.1 of the Code provides that this Tribunal may dismiss an Application where the substance of the Application already has been appropriately dealt with in another proceeding. As noted above, the conduct of the York EMS paramedics at the scene was the subject of an investigation by the Ministry in response to a complaint made by the applicant’s father. An issue is raised as to whether or not the Ministry investigation is a “proceeding” within the meaning of s. 45.1 of the Code, and whether it appropriately dealt with the substance of the Application against York EMS.

15The conduct of the York Police officers was the subject of a complaint under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”). An investigation was conducted by the York Police which found the complaint to be unsubstantiated, and this was confirmed on appeal to the Ontario Civilian Commission on Police Services (“OCCPS”). This Tribunal already has ruled that the investigation of a complaint under the PSA and a subsequent appeal to OCCPS constitutes a “proceeding” within the meaning of s. 45.1 of the Code. An issue arises in this case as to whether the investigation and OCCPS appeal appropriately dealt with the substance of the Application against York Police. The parties’ attention is directed to the following decisions of this Tribunal: Qiu v. Neilson, 2009 HRTO 2187; Pamula v. Ontario Provincial Police, 2010 HRTO 73; A.F. v. Durham Regional Police Services Board, 2010 HRTO 1508.

16As stated above, these respondents also have raised a preliminary issue as to whether the Applications filed set out a prima facie case of discrimination. In the Responses filed to these two Applications, these respondents note the lack of particulars provided in the complaints regarding how it is that the applicant is alleging that York EMS or York Police discriminated against him on the basis of his race, ethnic origin, creed or sex, and request that the applicant provide such particulars. While the applicant was afforded under the Rules with an opportunity to file a Statement of Additional Facts in relation to both Applications, he has not done so.

17In my view, it is appropriate in this case to convert the hearing scheduled for November 16, 2010, into a preliminary hearing to address the preliminary issues raised by the respondents York EMS and York Police. As a result, the hearing on that date will be only for the purpose of hearing oral submissions on these preliminary issues, and will not hear evidence regarding the substance or merits of the Applications. Accordingly, the parties do not need to comply with their obligation under the Rules to file a list of witnesses and a summary of evidence and the documents they intend to rely upon 20 days in advance of the preliminary hearing, except to the extent that any such witnesses or documents relate to evidence proposed to be given that is relevant to the preliminary issues raised.

18In advance of the hearing, I set the following schedule for the receipt of written submissions from the parties:

a) By no later than September 24, 2010, the applicant shall serve on the respondents York EMS and York Police and file with the Tribunal a statement of all material facts that he is relying upon in support of the allegations made in his complaints that he experienced discrimination because of his race, ethnic origin, creed and sex by the police officers and/or paramedics who attended the scene. These material facts should detail why the applicant believes that he experienced such discrimination, with specific details regarding the evidence he proposes to call to support his beliefs.

b) By no later than October 8, 2010, the respondents York EMS and York Police shall serve and file written submissions regarding their request for dismissal of the Applications pursuant to s. 45.1 of the Code and/or for failure to set out a prima facie case of discrimination, including any evidence and caselaw upon which they rely in relation to the preliminary issues. In this regard, the York Police shall serve and file with the Tribunal a copy of the full police investigation report.

c) By no later than October 22, 2010, the applicant shall serve and file written submissions in response, including any evidence and caselaw upon which he relies in relation to the preliminary issues.

d) By no later than October 29, 2010, the respondents shall serve and file any reply submissions.

19I am not seized.