HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Charmaine Marshall
Applicant
-and-
Lakeridge Health Corporation and Erik Paidra
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Marshall v. Lakeridge Health Corporation
WRITTEN SUBMISSIONS BY
Charmaine Marshall, Applicant ) On her own behalf
Lakeridge Health Corporation, Respondent ) Shane Smith, Counsel
Dr. Erik Paidra, Respondent ) Anne Posno, Counsel
1This is an Application 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 Lakeridge Health Corporation (“Lakeridge”) and Dr. Erik Paidra. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on June 16, 2007.
2By Decision dated June 15, 2010, 2010 HRTO 1359, I dismissed this Application in its entirety as being beyond this Tribunal’s jurisdiction for failing to set out a prima facie case to support a violation of the Code because of the applicant’s race, ancestry, colour, ethnic origin, place of origin or marital status.
3The purpose of this Decision is to address the following issues: (1) whether the Application sets out a prima facie case of discrimination because of disability; (2) the applicant’s Request for reconsideration of my prior Decision; (3) the respondent Dr. Paidra’s Request for production; and (4) the next steps in this proceeding.
The Commission’s June 24, 2010 Letter
4Following release of my Decision in this matter, the Tribunal received correspondence from the Commission dated June 24, 2010. This correspondence noted that in my Decision at paragraph 9, I had stated that in her complaint the applicant had not alleged discrimination because of actual or perceived disability. The Commission noted that this statement was made in error, because the complaint as issued by the Commission had added the ground of disability.
5This is correct and the statement made at paragraph 9 of my Decision was in error. The process at the time the applicant filed her complaint involved a person preparing a self-drafted complaint and submitting this to the Commission. The Commission would then issue the complaint together with a cover page that sometimes included changes to the self-drafted complaint.
6The self-drafted complaint as prepared by the applicant did not include an allegation of discrimination because of disability. When the applicant filed her Application with the Tribunal, she included the cover page for the complaint as issued by the Commission. On this cover page, there is a box that sets out the grounds of discrimination alleged. Disability was not one of the grounds cited in this area of the complaint. However, beside this area, the applicant had handwritten “projected mental status (disability)”. As the Tribunal’s transitional process does not permit an applicant to self-amend a complaint in this fashion, the applicant’s handwriting was not effective to add the ground of disability to her complaint. However, in the bottom portion of the cover page of the complaint as issued by the Commission, there is a section that states: “Complainant agreed to the following changes to the complaint”. It is in this section that the reference is made to “the addition of disability as a prohibited ground”.
7On this basis, I accept that disability was properly cited in the applicant’s complaint and is a ground of discrimination that is within the scope of the Application.
8Having received the June 24, 2010 correspondence from the Commission, the Tribunal wrote to the parties to invite their submissions in response to this correspondence. Submissions were received from all parties, including the applicant who requested and was granted an extension and filed her submissions on July 20, 2010.
9In the meantime, on July 16, 2010, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. By letter dated July 23, 2010, the Tribunal directed the respondents to file a Response to Request for Reconsideration within 21 days. Both respondents filed such responses.
10In my Decision, while I did dismiss the Application in its entirety, I did so expressly on the basis 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. (See para. 11.)
I did not make any finding that the Application failed to set out sufficient grounds to support an allegation that the applicant experienced discrimination because of disability. As a result, this issue has not yet been addressed.
11Accordingly, in this Decision, I will first consider whether the Application sets out a sufficient basis to support an allegation of discrimination because of disability. As this issue has not yet been determined by me due to my error, I will regard this as being subject to reconsideration on the Tribunal’s own motion. In dealing with this issue, I will consider the submissions filed by the parties in response to the Commission’s June 24, 2010 letter, as invited by this Tribunal.
12With regard to the grounds of race, ancestry, colour, ethnic origin, place of origin and marital status, I did expressly consider these grounds in my previous Decision and found that the Application did not set out a sufficient basis to support these grounds. Accordingly, when dealing with these alleged grounds of discrimination, I will address the issue on the basis of the Request for Reconsideration filed by the applicant and in accordance with the Tribunal’s Rules.
Discrimination because of Disability
13As stated above, I am addressing this issue on the basis that the Tribunal is reconsidering its prior Decision on its own motion, as this Tribunal is entitled to do pursuant to Rule 25.9 of its Rules for Transitional Applications. In particular, I will consider pursuant to Rule 25.5(d) whether “other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions”. In my view, the fact that my prior Decision did not address the issue of whether the Application established a prima facie case within this Tribunal’s jurisdiction on the basis of disability is a factor that outweighs the public interest in the finality of Tribunal decisions.
14In her material, the applicant divides her submissions between what she describes as a “real disability” and as a “perceived disability”. With regard to her allegations of discrimination because of a “real disability”, the applicant states that she has hypoglycaemia and alleges that this disability was not “accommodated” by Lakeridge and Dr. Paidra. However, when one examines the basis upon which the applicant alleges that her medical condition was not “accommodated”, it is apparent that what she is really alleging is that she did not receive proper treatment for this condition while she was in Lakeridge’s care. For example, she states that her blood sugar was not checked, monitored or observed, she was not given anything to eat or drink, and was not able to help herself because she was physically restrained. It is not within this Tribunal’s jurisdiction to consider at large whether a person has received proper treatment for a disability or medical condition. To come within this Tribunal’s jurisdiction, there must be some basis provided to support an allegation that proper treatment was not provided because of a person’s disability.
15The closest the applicant comes to making an allegation of this nature in her submissions is an allegation that she was called “combative” based upon her disability-related symptoms, which she describes as her “inability to walk when [she] was brought into the hospital due to weakness and recent repeated assault by the police” and that this labelling of her by health care staff conjured a negative and disapproving attitude towards her which the applicant alleges is discrimination.
16It is not at all clear to me how the applicant is making a connection between being regarded as “combative” and any weakness or inability to walk which may have been caused in part by her hypoglycaemia. On the basis of the applicant’s own materials, in particular her responses to various hospital staff, there are other reasonable explanations for why the applicant may have been regarded as combative. More significantly, however, this allegation is raised for the first time in the applicant’s submissions in response to the Commission’s letter and does not appear in her complaint which forms the basis for this Application.
17The applicant’s complaint does reference her hypoglycaemia in the context of describing her experience that night and that she was “going back and forth to the brink of consciousness”, and she then states near the end of her complaint that her “injuries (sustained from the police), high heart rate, low blood sugar, fluctuating level of consciousness were all unassessed/detected or managed by [doctor]”. Once again, at its highest, this may in part be an allegation that she did not receive proper medical treatment for her hypoglycaemia. But it is not an allegation that she did not receive proper treatment because of her hypoglycaemia, nor is there any allegation in the complaint that she experienced discrimination as a result of being improperly labelled as “combative” due to her hypoglycaemia-related symptoms.
18Pursuant to s. 53(5) of the Code, a transitional application must be based upon the subject-matter of the complaint as filed with the Commission. As the allegation of discriminatory labelling was not included as part of the subject-matter of the complaint, it does not fall within the proper scope of the Application.
19The applicant next references her allegations of discrimination because of “perceived disability” which she describes as being perceived to be suicidal. She alleges that because she was brought into the emergency department with the labels of “mental patient”, “suicidal” and “psych patient”, this led to discrimination in the provision of services because of the prejudiced attitudes harboured by hospital staff.
20There appear to be four main components to the applicant’s allegations in this regard. The first relates to the fact that the applicant was placed in restraints that she states were too tight and caused her injury and which she states were unnecessary and applied contrary to proper medical procedure. The second component relates to the applicant being put on a Form 1 without having been properly assessed by a doctor. Third, the applicant alleges that she was treated with “scorn, contempt, invalidation, insignificance, dismissal, de-value and inferiority” because of her perceived mental disability. The applicant states that this was evidenced by her transfer from police to hospital custody, being placed in restraints, and being left that way for a very long period of time without being formally assessed, and she alleges that this conduct was discriminatory because it did not follow procedure or protocol. Finally, the applicant also alleges that her needs were not “accommodated”, because she was not provided with food or drink, opportunity for physical activity, or toileting.
21Having reviewed the complaint that forms the basis of this Application, I am satisfied that the issues raised in the applicant’s submissions regarding perceived disability are within the proper scope of the Application. The complaint clearly references the restraints that were applied to the applicant, that they were too tight, and that she was denied timely assistance in alleviating this problem. The complaint references the Form 1 and that she had not been properly assessed by the doctor. The complaint also raises allegations about how the applicant was treated by the doctor and hospital staff, and requests a remedy in relation to how hospital staff deal with people who they think are “mental patients”. In my view, the issue raised in the complaint about how the applicant alleges she was treated by hospital staff is sufficient to encompass the applicant’s allegations in her submissions about not being provided with food or drink, opportunity for physical activity, or toileting.
22At this preliminary stage of the process, in the absence of hearing evidence or oral submissions from the parties, I need to assess whether this Tribunal has jurisdiction over the applicant’s allegation of discrimination because of perceived disability on the basis that the applicant’s allegations are capable of being proven. Whether or not they are capable of being proven will depend upon consideration of all of the evidence led at a hearing. However, assuming without deciding that the applicant’s allegations are capable of being proven, I find that her allegations are sufficient to make out a prima facie case of discrimination because of perceived disability and hence are within this Tribunal’s jurisdiction.
23While there certainly may be aspects of the applicant’s allegations that speak to whether or not she received proper medical attention or care, the applicant’s fundamental allegation is that she was deprived of such proper medical attention or care because she was perceived to have a mental disability. This is an allegation that falls squarely within this Tribunal’s jurisdiction.
24Accordingly, I find that the Application does establish a sufficient basis to support an allegation of discrimination because of perceived disability, and that this outweighs the public interest in the finality of Tribunal decisions. As a result, I deny the respondents’ Request to dismiss the Application on this basis and allow the Application to proceed to deal with this specific allegation.
The Applicant’s Request for Reconsideration
25Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) provides as follows:
45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.
26Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008).
27The Tribunal’s Practice Direction on Reconsideration includes the following statements:
Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
28As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.
29In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.
30The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 of the Rules provides:
A Request for 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.
31As a result, I need to determine whether the material filed by the applicant in support of her request for reconsideration satisfies any of the criteria set out in Rule 25.5 upon which she relies.
32While my previous Decision was styled as an Interim Decision as it addressed two applications which were proceeding together, there is no doubt that the Decision as against Lakeridge and Dr. Paidra was a final decision and therefore subject to reconsideration under the Rules.
33The applicant relies upon sub-para. (c) of Rule 25.5 to assert that my Decision is in conflict with established jurisprudence or Tribunal procedure and that the proposed reconsideration involves a matter of general or public importance.
34With regard to the first component of sub-para. (c), the applicant relies upon s. 43(2).1 of the Code which provides that “an application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules”. The applicant asserts, based upon this provision, that she should have been afforded a right to make oral submissions before her Application was dismissed.
35As expressly stated in s. 43(2).1, the right to make oral submissions only applies to applications “within the jurisdiction of the Tribunal”. An application is only within this Tribunal’s jurisdiction if it reveals some basis to support an allegation that a provision of the Code has been breached, which requires some connection or nexus between the allegations made and at least one of the grounds of discrimination prohibited under the Code. In the instant case, having reviewed the applicant’s allegations in her complaint and as expressed in my Decision, I held that I was not satisfied that the applicant’s complaint sets out sufficient material facts to support a prima facie case of discrimination because of race, ancestry, colour, ethnic origin, place of origin and marital status so as to come within this Tribunal’s jurisdiction under the Code. Rather, I found that her complaint relates to the medical treatment she alleges she received at Lakeridge on the evening of July 20, 2006 and into the following day. As I found that the applicant’s allegations of discrimination on these grounds were not within this Tribunal’s jurisdiction, the requirement under s. 45(2).1 to provide an opportunity for oral submissions did not apply.
36In the material filed by the applicant in support of her reconsideration request, the applicant expresses her belief that she experienced discrimination because of race, ancestry, colour, ethnic origin, place of origin and marital status, and her belief that someone who was not a single Black female with a perceived mental disability would not have been treated in the same way, but she does not provide any specifics or particulars to support this belief.
37I also am concerned that the applicant failed to file any submissions in response to the respondents’ initial Request to dismiss the Application for failure to set out a prima facie case, despite expressly being put on notice of this issue and her ability to file submissions. By letter from the Tribunal dated March 23, 2010, it was noted that the respondents had indicated that they would be making a request for an order dismissing the Application for failure to make out a prima facie case, and a schedule was established to receive submissions from the parties on this issue, including the opportunity for the applicant to make submissions by no later than June 2, 2010. Despite having been served with the respondents’ Request for Order to dismiss the Application on this basis together with supporting submissions, the applicant failed to file any submissions in response.
38In her reconsideration request, the applicant states that she had difficulty understanding correspondence from the Tribunal and did not understand that written submissions were required. I do not accept this, as the materials filed by the applicant following release of my previous Decision clearly demonstrate her ability to understand and comply with the Tribunal’s directions and processes. I also note that, if the applicant did in fact have trouble understanding the Tribunal’s correspondence, she failed to make any timely effort to seek clarification from the Tribunal as to what was required of her.
39As noted by the respondents in their submissions, reconsideration is not an opportunity to re-argue a case. See Sigrist and Carson, supra. Having failed to file any submissions in response to the respondents’ initial Request to dismiss and in the absence of any proper explanation as to her failure to file such submissions, it is not open in my view for the applicant to file submissions on reconsideration that she could and should have made in the first instance.
40For all of these reasons, the applicant’s Request for Reconsideration is denied.
Request for Production
41In my previous Decision I did not address the Request for production made by Dr. Paidra, as I had dismissed the Application and found that this Request was moot. As the Application is now proceeding on the basis of the applicant’s allegation of discrimination because of perceived disability, I will now address this Request for production.
42Dr. Paidra requests an order for production of a complete copy of the records of the applicant’s family physician, all medical records relating to the alleged disability of a mental illness and the allegation that the applicant has been unable to work since July 2006, tax returns since 2002, employment files since 2004, and documents evidencing any efforts to locate new employment since 2006.
43With regard to the issue of the applicant’s medical records, my understanding is that the applicant is alleging discrimination because of a perceived mental disability, as opposed to an allegation of discrimination because of an actual mental disability. Accordingly, the issue for determination in this case is whether the applicant was treated differently or otherwise discriminated against because Dr. Paidra and/or hospital staff perceived her as having a mental disability. Accordingly, in my view, the medical records sought by the respondent are not arguably relevant to this issue and I will not order their production.
44With regard to the balance of the respondent’s request, all of these materials relate to the remedy that is sought by the applicant in this proceeding. As with many transition cases, in my view the most fair, just and expeditious manner of proceeding with this case is to bifurcate the proceeding to deal first with the issue of whether or not the applicant experienced discrimination because of perceived mental disability, and then at a later stage, and only if a violation of the Code is found, to address any issue of remedy. If any party objects to bifurcation of this proceeding in this manner, they shall serve and file submissions stating the reason for their objection within 10 calendar days of the date of this Decision. Pending determination of the bifurcation issue, I find that the respondent’s Request for production of these documents is premature.
Next Steps
45Pursuant to my previous Decision in this and a related matter (the “police Application”), I am aware that a preliminary hearing was held on July 14, 2010 to address the issue of whether the police Application should be dismissed pursuant to s. 45.1 of the Code on the basis that another proceeding already had appropriately dealt with the substance of that Application. I understand that the decision on that issue is still pending.
46Following the release of the Tribunal’s decision regarding the police Application and depending on the Tribunal’s disposition of the preliminary issue, the Tribunal will schedule a date for the hearing of this matter, either on its own or together with the police Application.
47In the meantime, the Tribunal will treat the applicant’s submissions dated July 20, 2010 in response to the Commission’s June 24, 2010 letter as a Statement of Additional Facts filed by the applicant only to the extent that it addresses her allegation of discrimination because of perceived disability, and shall afford the respondents to this Application with an opportunity to file any Statement of Additional Facts in response to the applicant’s allegations of discrimination because of perceived disability within 14 calendar days of the date of this Decision. Within this timeframe, the respondents also shall make disclosure to the applicant of all further arguably relevant documents as may be required as a result of her allegations of discrimination because of perceived mental disability, as now particularized in her July 20, 2010 letter.
48I am not seized.
Dated at Toronto, this 19^th^ day of October, 2010.
”signed by”_____________
Mark Hart
Vice-chair