S.D. v. Grand River Hospital, 2010 HRTO 1911

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.D.

Applicant

-and-

Grand River Hospital (Hazelglen Outreach Mental Health Service)

Respondent

RECONSIDERATION DECISION

Adjudicator: Ken Bhattacharjee

Date: September 21, 2010

Citation: 2010 HRTO 1911

Indexed as: S.D. v. Grand River Hospital

WRITTEN SUBMISSIONS BY

S.D., Applicant ) Self-Represented

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 29, 2008, which alleged that the respondent discriminated against her with respect to services because of her disability.

2At the hearing, the Tribunal ordered that the applicant’s patient chart, which was admitted as evidence, be sealed. Prior to issuing its Decision, the Tribunal also decided, on its own motion, to anonymize the applicant’s name in order to protect the integrity of the sealing order.

3On August 6, 2010, the Tribunal issued a Decision, 2010 HRTO 1653, which dismissed the Application.

4The Tribunal provided the following reasons for dismissing the Application:

Accordingly, the issue that I am required to determine is whether the applicant has proven on a balance of probabilities that the nurse made discriminatory entries in the applicant’s patient chart and treated her in a discriminatory manner because of her disability when she was under the nurse’s care. For the reasons that follow, I have decided that the applicant has not proven her case.

The applicant has the burden of proving not only that the entries were inappropriate and that the nurse mistreated her, but that the inappropriateness and mistreatment were based on a prohibited ground under the Code, which in this case, is disability. This is consistent with the Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.), which defined discrimination as follows:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

I accept the applicant’s evidence that she was very upset when she read her patient chart years later, particularly because the nurse had recorded things that she had said that she probably would not have said if she was in good health. I also accept her evidence that she felt that the nurse’s inquiries were intrusive and a violation of her privacy. In my view, most people in the applicant’s position would probably feel the same way that she does.

That said, bad feelings, no matter how strongly felt, do not establish a case of discrimination. The applicant did not establish in any way that the entries themselves or the way the nurse treated her amounted to differential treatment based on her disability, or that the practice of making entries on a patient’s chart in an outpatient service such as this one has an adverse or disparate effect on persons with mental disabilities. There was also no allegation that, as a result of the entries, the care that she received was discriminatory.

Furthermore, while I recognize that a violation of an individual’s privacy can be discriminatory in certain circumstances, I accept the Clinical Director’s undisputed evidence that the information contained in the applicant’s patient chart is confidential and can only be disclosed with the applicant’s consent or pursuant to a legal proceeding.

In deciding whether or not the nurse was following appropriate professional nursing standards, I prefer the evidence of the Clinical Director and the nurse, who both have formal education and extensive work experience in nursing and mental health, over the applicant, who has no such formal education or work experience. As such, I accept the respondent’s non-discriminatory reasons for making the entries, and taking the actions that it did when the applicant was under its care.

Specifically, I accept the Clinical Director’s evidence that nurses are legally and professionally required to document their interactions with patients, the Clinical Director and the nurse’s evidence that risk assessment, including risks related to eating, sexual behaviour and dressing, is necessary, and the nurse’s evidence that all her entries in relation to the applicant were relevant and in context.

With respect to the issue of whether the nurse pressured the applicant to have an abortion if she became pregnant, and if so, whether such pressure would constitute discrimination because the applicant had a mental disability at the time, the applicant admitted that the nurse told her that she could, not should, have an abortion if she became pregnant. Furthermore, it is clear from reading the patient chart as a whole that the nurse provided the applicant with a range of information and options in relation to sexual and reproductive health.

5After the Tribunal issued its Decision, the applicant filed a Request for Reconsideration of the Decision, as well as a significant number of other submissions and documents, most of which appear to be in support of the Request.

6Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider its Decision in accordance with the Tribunal’s Rules of Procedure.

7Rule 26.5 of the Tribunal’s Rules states that reconsideration will not be granted unless the Tribunal is satisfied that:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

8These four circumstances are also set out in section 2 of the Request for Reconsideration Form, which states: “Please check the reasons why you are making this Request for Reconsideration. Check all that apply.” The applicant checked off the box for a). In addition, the other submissions and documents that she filed appear to relate to Rule 26.5 a).

9The applicant submitted that the Tribunal’s Decision should be reconsidered because new evidence has emerged. Specifically, the respondent’s doctors and nurses committed criminal acts and professional misconduct by coercing her to buy and take a controlled drug that she did not need and that had serious side effects, and the respondent’s legal counsel breached the Tribunal’s sealing order by sharing the Tribunal’s Decision with another lawyer in a different legal proceeding. In her submissions, the applicant also made several arguments about why she disagreed with the merits of the Tribunal’s Decision.

10The applicant’s Request is denied. I do not accept that there is new “evidence” that she was coerced to buy and take a controlled drug. The drug in question is referred to in her patient chart, and the applicant admitted that the respondent’s nurses “boldly recorded their instructions regarding the use of [the drug] into [my] patient chart with their handwritings.” In other words, the applicant’s submission appears to be a new “allegation”, rather than new “evidence”. In addition, even if I accept that there is new evidence, the applicant does not explain, and I cannot see, how the new evidence could potentially be determinative of the case and could not have reasonably been obtained earlier.

11I also do not accept that the respondent’s legal counsel’s alleged breach of the Tribunal’s sealing order is grounds for reconsideration of the Tribunal’s Decision. Even if I accept that the applicant’s allegation is true, and that it is new evidence, she does not explain, and I cannot see, how this new evidence could potentially be determinative of the merits of her case.

12Furthermore, with respect to the applicant’s arguments about the merits of the Decision, reconsideration is not available simply because a party disagrees with the Tribunal’s Decision, and is not an opportunity for a party to reargue the case.

13Again, I appreciate that the applicant strongly believes that the respondent’s doctor and nurses were intrusive, violated her privacy, and harmed her health, but there are insufficient grounds for reconsideration of the Tribunal’s Decision.

14The Request for Reconsideration is dismissed.