HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lin Zhang

Applicant

-and-

Queens University

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: December 15, 2010

Citation: 2010 HRTO 2488

Indexed as: Zhang v. Queens University

Appearances

Lin Zhang, Applicant ) On her own behalf

Queens University, Respondent ) Dianne Kelly, Counsel

[1] The applicant, Dr. Lin Zhang, is a physician who received her medical training in China and graduated in 1977. At the hearing she self-identified as a woman over 50, from China, who was single-parenting her teenage son during the period covered by the Application. The applicant was selected by the respondent to participate in a twelve-week assessment verification process (AVP) in Family Medicine established by the College of Physicians and Surgeons of Ontario (the “College”) for international medical graduates (“IMG’s”). The applicant alleges that her failure to successfully complete the AVP resulted from discrimination on the basis of race, place of origin, age and family status.

[2] The respondent, Queens University, takes the position that the applicant failed to complete the process because of significant deficits in her skills, which, despite attention and support from her evaluators, could not be resolved during the AVP. According to the respondent, the AVP is an evaluation process and not an educational or training process, although it is designed to identify and to some extent address differences in skills which arise from different teaching methods worldwide. Essentially, the program is designed to evaluate whether IMG’s have skills equivalent to Canadian university medical school graduates, subject to some reasonable gaps, which would allow them to move into the residency phase of their education in Canada.

[3] The hearing of this matter commenced on September 29, 2009 and resumed on July 5, 2010, at the conclusion of which, I rendered my decision dismissing the Application. These are my reasons for that decision.

Procedural Background

[4] This case was originally set for hearing on September 29, 2009. The applicant was not represented and asked for an opportunity to retain counsel. The Tribunal granted the adjournment. The proceeding appeared to be causing the applicant considerable distress, she was highly anxious and frequently unable to communicate coherently, despite having a very good command of the English language.

[6] The Tribunal also determined that the area under the Code that was engaged by the Application was service and not employment. The applicant was not employed by the respondent during the period of the AVP. I accept that the University was engaged in providing the applicant with a service which, had she been successful, would have lead to an opportunity for residency and employment on the same terms as any graduate of a Canadian medical school.

[7] The July 5, 2010 hearing date was set in February 2010. Just days before July 5, 2010, the applicant again sought another adjournment. Her letter to the Tribunal indicated that she had recently experienced a death in the family however the letter lacked sufficient particulars to establish why the applicant was unable to attend the hearing in the face of that unfortunate experience. The adjournment request was denied.

[8] The hearing proceeded on July 5, 2010. The applicant was unrepresented. The respondent was represented by counsel. The Tribunal heard evidence from the applicant, the three doctors who acted as her evaluators during the AVP process (Dr. Wilson, Dr. Griffiths and Dr. MacDonald) and the director of the family medicine program at Queens who has overall responsibility for the AVP program, Dr. Henry.

[10] The hearing was very difficult for everyone involved. The applicant appeared to be extremely distressed by the proceeding as she had been on September 29, 2009. She had to be asked, on a regular basis throughout the hearing, to try to remain focussed and to stop interrupting and arguing. She seemed incapable of listening and taking direction from the Tribunal. This is not to suggest that she was not respectful and pleasant at times throughout the hearing. However, throughout the entire hearing, she was interruptive, highly emotional and unpredictably volatile.

[11] This behaviour may best be explained by Dr. MacDonald who testified that she and her colleagues were very conscious of the level of anxiety many IMG’s experienced during the AVP because of the “stakes” involved. Unless they pass the AVP, they cannot practise medicine in Canada. She attempted to tell me, as best she could, that there were cultural factors behind her extreme anxiety about the possibility she might lose the Tribunal hearing. For example, the applicant testified that she was humiliated by what had happened. She was sure people assumed she must have done something egregious like killing one of her patients to get “kicked out” of the program. She testified that her husband and son no longer had any respect for her. Whatever the origin of her distress, everyone who participated in the hearing was affected. Susan MacDonald spoke directly to the applicant at the end of her testimony and said to her “you can tell your son for me, that you are a woman of great courage, with a great future, just not in family medicine.”

[12] I gave my decision with reasons to follow at the conclusion of the hearing because I felt that any delay in providing the applicant with a written decision would be intolerable to her given the high level of anxiety she exhibited during the hearing. It was also my wish to convey to her, in the presence of her family, what the dismissal of her Application actually meant: the failure to make out the legal burden to prove her allegations, not her failure as a physician or a person, a fear which she so anxiously expressed throughout the hearing.

Factual Background

The Assessment Verification Process (AVP)

[13] The evidenced established that the AVP is a twelve-week assessment process governed by the College of Physicians and Surgeons of Ontario for IMG’s. The purpose of the AVP is to ensure that IMG’s meet the competencies necessary to move on to graduate level training. Had the applicant been successful in the AVP, she would have moved on to commence her residency on the same terms as any medical student graduating from a Canadian University. The program is for international graduates and therefore represents a wide diversity of candidates from a variety of countries and medical training programs.

[14] The evidence of the respondent confirmed that since 2000, there have been 123 IMG’s registered in the postgraduate training program at Queens. The candidates represent a diverse population in terms of their race, ethnicity and age. The respondent provided a breakdown of the countries as follows: Africa 10.6%; Americas 13%; Asia 46.3%; Europe 29.3%; Oceania 0.8%. In 2008/09, there were 81 international medical graduates registered in post graduate training programs at Queen’s, and of these, 13 (16%) were age 46 or over. Another 9 (11.1%) were between 41 and 45 years of age and 20 (24.7%) were between the ages of 36-40. The applicant did not dispute these figures.

[15] The evidence of the respondent established that the AVP is for the purpose of evaluation and not training. The expectation among the evaluators is that the candidates who enter the AVP are essentially ready for residency. It is expected that given the variety of training programs and practice experience they acquire in different countries, there will be some need to familiarize the candidates with and evaluate them against prevailing Canadian medical standards.

The Application to the AVP

[17] The Application contains references to some experiences which predate the applicant’s acceptance into the AVP program. The applicant participated in the Pre-Entry Assessment Program for Fellows at Sunnybrook Hospital (University of Toronto) and received a certificate of registration from the College authorizing her to practise medicine under supervision. The applicant alleges that she also experienced discrimination in the course of that program and was ultimately asked to leave.

[19] The evidence of both parties established that after the Sunnybrook experience, the applicant applied for a residency placement through the Canadian Residency Matching Service (CARMS). The Program Directors of Ontario reviewed the files of some 1400 international medical graduate residency applications, and issued invitations for interviews. The applicant received an interview. Dr. Ruth Wilson from Queens University, who gave evidence at the hearing of this matter, was a member of the interview panel and ultimately became one of the complainant’s evaluators in the AVP. Dr. Wilson testified that she was impressed with the applicant who was ultimately chosen for one of the limited number of positions available in the program. The applicant was one of 14 international medical graduates taken on in Family Medicine at Queens at that time.

Allegations of Discrimination

[20] The applicant filed a written Application which contained a 17 paragraph narrative describing her allegations of discrimination. She alleged discrimination on the basis of race, place of origin, family status and age. At the hearing, the applicant adopted the contents of her application as part of her testimony, subject to some inconsequential clarifications she made to paragraph 2.

[21] The Application described the circumstances under which the applicant decided to relocate to Kingston, Ontario to participate in the AVP program at Queens. She completed what she described as a 4-month pre-residency training program in Toronto, and then, again in her words, began “the two year residency in the Family Medicine Program at Queens in September 2007”. She understood that she would need to undergo an evaluation period (the AVP) for the first twelve weeks in order to move on in the program. Her expectation was that she would pass and as a result, she discussed the matter with her family and the applicant’s teenage son made a significant sacrifice to relocate with her from Toronto to Kingston. She states in her Application her view that IMG’s do not fail the AVP unless they refuse to learn in that environment.

[22] The specific allegations which relate to discrimination are contained in the following paragraphs:

a) Paragraph 4: each of the supervisors had a different set of standards and expectations depending on the background of the IMG. In her view, an IMG who was evaluated by an someone who was herself an IMG, would find themselves in a more supportive learning environment than and IMG who was evaluated by a doctor trained in Canada.

b) Paragraph 5: shortly after seeing Dr. Ruth Wilson at the new resident welcoming party, Dr. Wilson asked her what year she graduated and told her that she was lucky since the program normally does not accept those who have graduated from medical school more than 3 to 5 years previous.

c) Paragraph 6: Dr. Susan MacDonald also asked her about when she graduated and asked for proof that she had passed certain exams. She further alleged that Dr. MacDonald “wondered” if someone had helped her write her exams. Essentially the allegation is that Dr. MacDonald behaved as if the applicant was untrustworthy.

d) Paragraph 7: she was treated very badly from the moment that the evaluators found out her age and graduation year. She alleged that she was teased about how bad things are in China. She mentioned news coverage about a story in China involving contaminated dog food which she says caused her colleagues to conclude that “nothing could be trusted from China”. She felt that she was not taken seriously because she obtained her training in communist China.

e) Paragraph 8: she was questioned about her use of Chinese when she was treating patients in China. She also alleged that the “physicians I worked with” (at Queens) complained about IMG’s with training in areas other than family medicine because their skills were not necessarily transferable.

f) Paragraph 9: her supervisors did not follow the rules for providing feedback in her log book. She alleged that was treated differently than Canadian residents in that they were provided with more positive feedback than she was and she was told by Dr. Henry not to complain.

g) Paragraph 10: despite what she described as unfair treatment, there were other physicians who provided her with support and appeared to be satisfied with her work. She also notes that her evaluation of November 29, 2007 showed that she had met expectations in many areas and had made “tremendous gains in basic clinical skills”.

h) Paragraph 10: her son suddenly became ill and she was required to take 2 weeks off to care for him. When she returned, she alleges that she was told by one of the doctors who had given her a good evaluation that they would not listen to his opinion and had decided to fail her. She alleges that another doctor from outside her group was assigned to video tape her.

i) Paragraph 12: when she received her final report it was entirely inconsistent with the evaluation of November 29, 2008. She also alleges that she was told that she could not appeal her final assessment but discovered later that she could have done so within 14 days.

j) Paragraph 13: another physician from Pakistan also failed but was provided with some assistance and permitted to return to the program. She alleges that another physician she worked with during her residency told her that when he expressed support for her case, he was told to be careful or he would lose his job.

k) Paragraph 15: she alleges that her experience is representative of thousands of IMG’s who she believes have not been given an equal opportunity to continue their medical education in Canada.

l) Paragraph 16 and 17: the evaluators should not have the power to remove someone in her circumstances from the AVP program. She says that there should be other programs and other supervisors to transfer to. The AVP program should not be a one-time opportunity for evaluation.

[23] Many of the allegations contained in the Application are based on broad generalizations and assumptions. With respect to the applicant’s oral testimony, despite my best efforts and the efforts of respondent counsel, it was not possible to get the applicant to provide the Tribunal with all the background necessary to fully evaluate her allegations. I have attempted to set out her allegations in a manner which reflects the way in which they were told to the Tribunal.

[24] The applicant testified to further examples of discrimination which included the fact that “they” didn’t smile at her or listen to her and she was being questioned on why the college initially would not give her a licence to practise while she was in the program.

[25] The applicant elaborated on her allegation against Dr. Wilson and the conversation she alleges took place between them. She testified that the conversation took place in Dr. Wilson’s office and that she made a series of comments: “you look so young to me”; “to tell you the truth, if I’d known you had graduated in 1977, I would not have offered you a position (in the program)”; “at your age, why don’t you enjoy life”; “think about your knowledge – 20 years ago they didn’t teach the same things – I can’t trust you with my patients – I prefer someone younger because they are fresh.” The applicant testified that she was very surprised and hurt and discovered during the conversation that Dr. Wilson had been talking with other students about the fact that the applicant was not using English when she was charting patients.

[26] Dr. Wilson did recall a conversation, although she could not recall the full details, where she indicated to the applicant that she was lucky to be part of the program. Her best recollection is that the conversation occurred after she returned from a meeting where she received information about the various matching programs across the country. She recalled that although the program at Queens matched people who had graduated some time ago, there appeared to be a tendency across the country to select more recent IMG’s. This was a concern to Dr. Wilson. She testified that she was fully aware of the applicant’s graduating year when she conducted the interview and denied that she made any of the other comments attributed to her by the applicant.

[27] At this point in her testimony, the applicant had been so rambling and incoherent and there were so many objections to the superfluous evidence she was attempting to put before the Tribunal that I determined it would be in the best interests of everyone concerned to give the applicant 15 minutes of completely uninterrupted time to focus on her experience in the AVP program.

[28] It was during this period that the applicant testified that she was told, although she did not say exactly by whom, that she came from a bad country, with bad leadership, a place where babies are killed, that she should be protecting babies, that everyone knows that Chinese people lie, that she probably bought her medical degree and that she herself killed babies. The applicant testified that she was treated like an animal.

[29] The applicant testified about the experience of examining a new born baby under the supervision of Dr. Wilson. She alleged that Dr. Wilson said to her “I’m not going to teach you – I want you to show me what you can do – you have 20 years experience”. The applicant testified that she did not want to hurt the baby and after the exam she was told that she missed one or two parts. In her view, she had been taught to do all of the same things in her original medical training, but they were done in a different sequence. She also alleged that Dr. Wilson accused her of not washing her hands when in fact she had.

[30] Dr. Wilson testified about her concerns with the applicant’s clinical skills in general and specifically her examination of this same newborn baby. Dr. Wilson testified that it quickly became clear that the applicant did not have an approach at all to the examination of a newborn. The applicant cupped her hand on the baby’s head and failed to feel for the “sweet spot”. She did not examine the face, ears or mouth. She used the adult part of the stethoscope and listened in the wrong area to hear the heart sounds. She did not examine the abdomen. She asked if she should take off the diaper. Dr. Wilson asked what she was looking for and the applicant responded with the possibility of a rash or diarrhoea. Dr. Wilson testified that she was taken aback because a newborn would not have time to develop a rash or diarrhoea. The correct answer would have been to assess the hips and genitals. Dr. Wilson described this examination as highlighting for her a large deficiency in the applicant’s skills.

[31] Dr. Wilson agreed that every resident is different and each one will have their own gaps. She took it that the applicant had not been exposed enough to newborns, although this surprised her because the applicant had experience in primary care in China. Dr. Wilson reported her concerns to the program director, Dr. Henry, and it was arranged that the applicant would have training in that area. However, the applicant testified that in general “they refused to teach me anything” and ultimately she was asked to leave the program.

[32] This concluded the applicant’s evidence. There was no cross-examination by respondent counsel. The applicant requested that a series of supportive letters written by Dr. Mireille Norris; Professor Christopher Pickles; Hongwen Liu; Keith McLeod; Dr. Lu-Ying Yang; and Dr. Brian Trickey. I agreed to mark those letters collectively as an exhibit, although I explained to the applicant that I would need to consider how much weight to give them given that the authors had not testified.

[33] The respondent called 4 witnesses including the applicant’s 3 evaluators and the AVP program director, Dr. Henry. Dr. Willa Henry is an associate professor at Queens University and the Program Director of the Post Graduate Family Medicine Training Program. At the time of the hearing, Dr. Henry had approximately 600 patients in her private practice. Dr. Jane Griffiths is an assistant professor at Queens University and a family physician. She has been teaching in the department of family medicine since 1988. Dr. Ruth Wilson, is a family doctor and has been a professor of family medicine for 21 years at Queens. Dr. Susan MacDonald is an associate professor in the department of family medicine and a family physician. She has a master’s degree in bioethics and came to teach at Queens University on a full time basis in 1987. She also maintains a family practice. Each of these doctors has significant experience in clinical practice and in training residents under their supervision. The IMG’s participate in the AVP in the context of the family practice of each of the evaluators.

[34] There was considerable consistency among the respondent’s witnesses with respect to the deficits in the applicant’s clinical skills and what they described as significant and unusual levels of support and training which were provided to the applicant. It was apparent from their testimony that they hoped the applicant would improve enough to pass the AVP.

[35] Dr. Henry was responsible for the AVP program. Dr. Henry testified that there were approximately 1400 applications per year for about 80 positions in the entire AVP program. Residents are assessed to ensure that they have the skills and knowledge to provide safe medical services to residents in Ontario. She testified that they have had many students from China, married students, and people who graduated decades ago. Over the 5 years that she has been involved in the AVP, there have been only 3 failures.

[36] The respondent produced a number of evaluation forms from the applicant’s time in the AVP, which were explained by Dr. Henry. The evaluation forms are required by the College and they show the applicant’s progress through the twelve-week period.

[37] Dr. Henry described the level of expertise required to enter the AVP as roughly equivalent to a new Canadian medical graduate. Their skills would include taking an accurate history, clinical examinations, the ability to develop differential diagnosis and treatment plans. They are not expected to have extensive knowledge of the complexities of specific therapeutic plans.

[38] According to Dr. Henry, there were concerns early on about significant gaps in the applicant’s knowledge, largely in relation to new born care and basic clinical techniques. In the October 16, 2007 assessment, which occurred at the two-week mark, the applicant was not meeting expectations. Dr. Henry testified that she was in constant contact with the applicant’s evaluators as she would be with any resident who was having difficulty. She met with the evaluators to give them guidance and with the applicant to help her understand where she stood in the program.

[39] During those meetings with the applicant, which took place after every evaluation, Dr. Henry testified that she explained that the applicant was not meeting expectations and explored whether there were barriers to her performance. She explored how some of the deficits could be resolved and established a clinical skills course with newborn babies to support the applicant, despite the fact that the program is not directed at remediation.

[40] Dr. Henry testified that when she met with the applicant her response was to become very anxious. The applicant would cry and say emphatically and repetitively that she had to pass the program.

[41] Dr. Henry also testified that there have been other IMG’s who have struggled in the AVP program. The gaps for people vary and so does their receptiveness to feedback. Dr. Henry explained that some candidates struggle with the patient centred clinical method upon which family medicine is based. In her view, the candidates are all treated as adult learners with respect and honesty and considered on an individual basis.

[42] Dr. Henry strongly disputed that the applicant was treated unfairly or that she was discriminated against in any way. She testified that the supervisors were concerned with her level of care and that she would have expected them to ask the applicant about her training so that they could identify gaps and provide support.

[43] With respect to the second evaluation, Dr. Henry testified that the applicant made improvements but she was still not meeting expectations. The applicant had one on one coaching and observation from experienced doctors and her supervisor’s remained optimistic, but in Dr. Henry’s view, the applicant was still significantly below expectations in a number of issues.

[44] On cross-examination Dr. Henry was asked by the applicant about a conversation where Dr. Henry told her that she should consider leaving the program. Dr. Henry responded that as time went on, it became clear to her that it was more and more likely that the applicant might not meet the standard. Dr. Henry indicated to the applicant that since failure in the AVP prevents one from applying again, it is her practice to discuss the option of withdrawal with residents who are struggling.

[45] Dr. Griffiths also confirmed that the expectations for the candidates in the AVP are that they should have the body of knowledge consistent with a Canadian student who has completed medical school. They should be able to take a very reliable and thorough history, conduct a physical exam, and display good skills in problem definition, and differential diagnosis. In essence, their core clinical skills should be sound.

[46] Dr. Griffiths was asked to comment on her initial impressions of the applicant. She responded that the applicant was very friendly and very eager but it often appeared to her that the applicant was not taking direction and not listening. Dr. Griffiths testified that the applicant’s clinical skills were at a very low level including her ability to take a comprehensive history and conduct a physical exam. According to Dr. Griffiths, the complainant required very close supervision from the beginning of the AVP.

[48] In addition, Dr. Griffiths testified that the three evaluators arranged for a number of individual teachings sessions for the applicant, which was unusual, in her view.

[49] Dr. Griffiths testified to sitting down with the applicant at the intervals required in the AVP program, at 2, 8 and 11 weeks. All of these were formal evaluation sessions, although the issues raised there were consistent with the daily feedback the applicant was receiving because of how closely they were all working together.

[50] Dr. Griffiths denied that the applicant was treated unfairly in any way. She testified that she was not aware of the applicant’s age and that many of the IMG’s have considerable experience. She was not aware of any of the comments alleged to have been made about events in China or the applicant’s ethnic origin.

[51] With respect to the issue of the applicant communicating in Chinese, Dr. Griffiths testified that it is considered a benefit to speak another language and that her patients appreciated it when the applicant was able to speak with them in their own language. In terms of her broader communication skills, the applicant had, in her opinion, a very good grasp of the English language, although she speaks very quickly. The problem, in Dr. Griffiths view, was not the applicant’s command of English, but her communication skills in the broader sense, like the applicant’s inability to listen and understand the directions she was being given.

[52] Dr. Griffiths testified that the AVP evaluations are standardized, that the applicant was getting regular feedback, orally, and in the form of small field notes which in Dr. Griffiths’ view did not provide enough space for her to set out the many issues which would arise with each patient. Although she and the applicant spoke at the end of every patient encounter, Dr. Griffiths testified that there were times that the applicant became so anxious about getting more feedback it was “difficult to extract yourself from the situation”. Many times she had to tell the applicant that she had to move on to see another patient.

[54] Dr. Griffiths did not agree with the applicant’s assertion that she had made considerable progress by the time of the final assessment. She testified that the applicant made progress in basic clinical skills, but on a global assessment, in her view the applicant did not have the skills she needed to be successful.

[55] Dr. Griffiths denied that the applicant was ever treated unfairly. Dr. Griffiths acknowledged that the applicant was treated differently with respect to the level of supervision she experienced, but this was based on her competencies and their efforts to assist her in getting through the program and not for any other reason.

[56] During cross-examination, Dr. Griffiths was asked by the applicant for more details about why she was not successful in the program. Dr. Griffiths responded that the applicant had very basic clinical skills, she was not at the level that they expected she should be and that the global assessment was that she would not be successful. Dr. Griffiths also testified that the three evaluators did the evaluations together and made the decision taking into account the evaluations of other physicians. She testified that the fact that the applicant took time off had no bearing on the assessment. She was fully accommodated and returned to the program when her son was well enough. This concluded Dr. Griffiths’ testimony.

[57] Dr. Wilson testified that she was a member of the committee which interviewed the applicant for the AVP program. Dr. Wilson had a file with the information on each candidate she interviewed although her role was to focus on the interview itself. She testified that the panel was looking for good communication skills, and candidates who were motivated to succeed. Their focus at the interview stage was on the candidate’s answers to the standardized questions.

[58] Dr. Wilson confirmed that at the time that she interviewed the applicant she was well aware that she received her medical degree in March, 1977. Dr. Wilson testified that she was impressed with the applicant and thought she would be a good fit. In her view, the applicant was highly motivated, she engaged Dr. Wilson well, she was very pleasant, appeared very persistent and her interpersonal skills seemed appropriate.

[59] Dr. Wilson also confirmed that although each supervisor and resident is an individual there is a uniform set of standards and expectations that relate to taking an accurate history, physical exam, list of potential diagnosis and a plan. They expect some gaps, but not large ones.

[61] Dr. Wilson also admitted that the applicant was treated differently in the sense that she was given special coaching and she was not on call like the other residents. However, Dr. Wilson denied that the applicant was treated unfairly because she was Chinese and she was not aware of anything that was ever said about the applicant’s ethnic heritage. In Dr. Wilson’s view, the simple fact was that the applicant failed to progress because she did not display the range of competencies she needed.

[62] Dr. MacDonald testified that it was evident right away that the applicant was weak in comparison to the standard, which is that IMG’s are expected to function as if they are at the early residency stage. Dr. MacDonald testified to the importance of ensuring that the candidates in the AVP have the skills necessary to practise safely when she noted “These are my real patients”.

[63] Dr. MacDonald also testified to the support that was provided to the applicant. She indicated that the evaluators attempted to clarify the deficiencies with the applicant and told her specifically what to work on. According to Dr. MacDonald, the applicant was guided to core basic reading material and arrangements were made for other clinicians to help including Dr. O’Connor. Dr. MacDonald explained the involvement of other physicians in this way: “you want to make sure that you haven’t got blinders on – so you get others involved in her assessment.”

[64] Dr. MacDonald disagreed with the applicant’s allegations that there was a lack of understanding of cultural differences. She testified her residents are from all kinds of backgrounds and she denied that she had a bias against or toward any resident. She referred to the example from the applicant’s testimony, that “Chinese people are dishonest”. Dr. MacDonald testified that she would never say such a thing.

[65] Dr. MacDonald also testified in relation to the allegations that the applicant was questioned about past exams. Dr. MacDonald explained that she was the chief examiner for an examination which involved the observation of candidates as they moved from station to station in a clinical setting. She did not realize that the applicant had already taken and passed the exam. She checked with Dr. Henry and asked if the exam was on file. Dr. MacDonald testified that she was impressed that the applicant had passed the exam because it was a second year residency exam and their observations of the applicant were inconsistent with those results. However, Dr. MacDonald denied ever asking the applicant if someone helped her with the exam. She testified that given the observational nature of the exam and her understanding of the security level associated with the exam, it would have been impossible for someone to have assisted the applicant.

[66] Dr. MacDonald also testified about the feedback process. She testified that each day in the clinic as a patient was seen, the applicant would be given feedback on the encounter. She testified that “I hoped it would be positive enough to be encouraging with the key component of the message that this is an area that needs to be addressed.” She indicated that everything was recorded and that this was standard procedure.

[67] Dr. MacDonald testified about the assessments conducted. At the November 29th assessment, which was not her final assessment, the applicant was still below expectations. Dr. MacDonald confirmed that the applicant had made some gains in basic clinical skills, by which she meant equivalent to a first or second year medical student. Dr. MacDonald testified to the concern that she and the other evaluators could not even assess some of the applicant’s skills because she was functioning at such a basic level.

[68] Dr. MacDonald denied that the applicant was treated unfairly. She testified that the applicant was given patients of varying complexity, a significant amount of support and encouragement and that she and the others worked very hard hoping that they could improve the situation. And, like the other witnesses, she was not aware of any inappropriate comments about China in general or the applicant’s ethnic heritage or age.

[69] Having heard the evidence of both the applicant and the respondent, I am unable to find any evidence to support the a connection between the applicant’s failure to succeed in the AVP program because of her race, place of origin, age or status as a single parent. Most of the allegations contained in the application itself are generalizations which are not attributed to a specific person. Some of the allegations, including comments that the applicant was a baby killer, that she may have purchased her degree and that Chinese people are generally dishonest, are difficult to believe on any standard. The difficulties in the presentation of her oral evidence and submissions make it impossible for me to conclude that her allegations are “complete and sufficient”, with is one of the standards by which the complainant’s evidentiary burden is measured. [Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC)](https://www.minicounsel.ca/scc/1985/18), [1985] 2 S.C.R. 536.

[70] I reviewed the letters of support filed by the applicant. Only two of the letters are from people other than friends and a former patient. One is from Dr. Mireille Norris, Program Director, Internal Medicine at Sunnybrook & Women’s College Health Sciences Centre at the University of Toronto. Although Dr. Norris recommends the applicant to the matching program which ultimately landed her in the AVP program at Queens, the letter simply recites the applicant’s qualifications and makes no observation of her clinical skills.

[71] On the other hand, the letter from Dr. Brian Trickey does indicate that the applicant was observed, under close supervision, in a clinical setting for a period of about 7 months. Dr. Trickey is complimentary of the applicant’s medical knowledge and clinical skills. However, I do not have sufficient information about the circumstances under which Dr. Trickey observed the applicant to prefer the observations contained his letter to those of the respondent’s witnesses. In addition, the respondent did not have an opportunity to cross-examine Dr. Trickey which also contributes to my decision to attach less weight to his letter.

[72] In assessing the credibility of the parties I have relied on the traditional test set out in [Faryna v. Chorny, 1951 CanLII 252 (BC CA)](https://www.canlii.org/en/bc/bcca/doc/1951/1951canlii252/1951canlii252.html), [1952] 2 D.L.R. 354 (B.C.C.A.):

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he [or she] has seen and heard as well as other factors, combine to produce what is credibility…In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…

[73] For a number of reasons I prefer the testimony of the respondent’s witnesses. In addition to the observations I have already made about the sufficiency of the applicant’s evidence, the allegations against the individual doctors were answered in a manner which is more consistent with the preponderance of evidence that the applicant failed the AVP because of deficits in her skills than any other theory. The documentary evidence consistently shows the applicant failing to meet expectations. The first one, conducted October 16, 2007 showed her below average with insufficient knowledge base and clinical skills. As of November 5, 2007, she was below average or unsatisfactory in all but interpersonal relationships and sense of responsibility. The November 29, 2007 assessment shows the applicant on the margin between being below expectations and meeting expectations in most categories.

[74] No one disputes that the applicant tried very hard to achieve success in the AVP program. No one disputes that the applicant is talented and accomplished in the medical field. However, the respondent’s explanation that the applicant was being closely monitored and offered additional support and training than the other residents because of the deficit in her clinical skills is more consistent with the preponderance of probabilities than the applicant’s theory that she could not be trusted because of the prohibited grounds cited in her Application.

[75] The AVP is part of a program that international medical graduates take part in to ensure that they are qualified to practise in Canada. Everyone in the program comes from a place other than Canada. This is not to suggest that discrimination on the grounds identified by the applicant cannot exist in a program which has been developed specifically to assist medical graduates from other countries to obtain certification in Canada. However, in this case, the applicant is unable to prove that she was discriminated against on the basis of her race, place of origin, age and family status.

[76] For those reasons, the Application is dismissed.

Dated at Toronto, this 15^th^ day of December, 2010.

“Signed By”

Leslie Reaume

Vice-chair

Lin Zhang v. Queens University, 2010 HRTO 2488

Case Summary

[3] The hearing of this matter commenced on September 29, 2009 and resumed on July 5, 2010, at the conclusion of which, I rendered my decision dismissing the Application. These are my reasons for that decision.

[22] The specific allegations which relate to discrimination are contained in the following paragraphs:

b) Paragraph 5: shortly after seeing Dr. Ruth Wilson at the new resident welcoming party, Dr. Wilson asked her what year she graduated and told her that she was lucky since the program normally does not accept those who have graduated from medical school more than 3 to 5 years previous.

e) Paragraph 8: she was questioned about her use of Chinese when she was treating patients in China. She also alleged that the “physicians I worked with” (at Queens) complained about IMG’s with training in areas other than family medicine because their skills were not necessarily transferable.

f) Paragraph 9: her supervisors did not follow the rules for providing feedback in her log book. She alleged that was treated differently than Canadian residents in that they were provided with more positive feedback than she was and she was told by Dr. Henry not to complain.

i) Paragraph 12: when she received her final report it was entirely inconsistent with the evaluation of November 29, 2008. She also alleges that she was told that she could not appeal her final assessment but discovered later that she could have done so within 14 days.

k) Paragraph 15: she alleges that her experience is representative of thousands of IMG’s who she believes have not been given an equal opportunity to continue their medical education in Canada.

l) Paragraph 16 and 17: the evaluators should not have the power to remove someone in her circumstances from the AVP program. She says that there should be other programs and other supervisors to transfer to. The AVP program should not be a one-time opportunity for evaluation.

[24] The applicant testified to further examples of discrimination which included the fact that “they” didn’t smile at her or listen to her and she was being questioned on why the college initially would not give her a licence to practise while she was in the program.

[36] The respondent produced a number of evaluation forms from the applicant’s time in the AVP, which were explained by Dr. Henry. The evaluation forms are required by the College and they show the applicant’s progress through the twelve-week period.

[40] Dr. Henry testified that when she met with the applicant her response was to become very anxious. The applicant would cry and say emphatically and repetitively that she had to pass the program.

[48] In addition, Dr. Griffiths testified that the three evaluators arranged for a number of individual teachings sessions for the applicant, which was unusual, in her view.

[59] Dr. Wilson also confirmed that although each supervisor and resident is an individual there is a uniform set of standards and expectations that relate to taking an accurate history, physical exam, list of potential diagnosis and a plan. They expect some gaps, but not large ones.

[72] In assessing the credibility of the parties I have relied on the traditional test set out in [Faryna v. Chorny, 1951 CanLII 252 (BC CA)](https://www.canlii.org/en/bc/bcca/doc/1951/1951canlii252/1951canlii252.html), [1952] 2 D.L.R. 354 (B.C.C.A.):

[76] For those reasons, the Application is dismissed.

[3] The hearing of this matter commenced on September 29, 2009 and resumed on July 5, 2010, at the conclusion of which, I rendered my decision dismissing the Application. These are my reasons for that decision.

[5] Before adjourning the matter on September 29, 2009, the Tribunal also made an order, on consent, removing the personal respondents as parties and confirming that Queen’s University was the proper respondent to the application.

[22] The specific allegations which relate to discrimination are contained in the following paragraphs:

b) Paragraph 5: shortly after seeing Dr. Ruth Wilson at the new resident welcoming party, Dr. Wilson asked her what year she graduated and told her that she was lucky since the program normally does not accept those who have graduated from medical school more than 3 to 5 years previous.

f) Paragraph 9: her supervisors did not follow the rules for providing feedback in her log book. She alleged that was treated differently than Canadian residents in that they were provided with more positive feedback than she was and she was told by Dr. Henry not to complain.

i) Paragraph 12: when she received her final report it was entirely inconsistent with the evaluation of November 29, 2008. She also alleges that she was told that she could not appeal her final assessment but discovered later that she could have done so within 14 days.

k) Paragraph 15: she alleges that her experience is representative of thousands of IMG’s who she believes have not been given an equal opportunity to continue their medical education in Canada.

l) Paragraph 16 and 17: the evaluators should not have the power to remove someone in her circumstances from the AVP program. She says that there should be other programs and other supervisors to transfer to. The AVP program should not be a one-time opportunity for evaluation.

[24] The applicant testified to further examples of discrimination which included the fact that “they” didn’t smile at her or listen to her and she was being questioned on why the college initially would not give her a licence to practise while she was in the program.

[36] The respondent produced a number of evaluation forms from the applicant’s time in the AVP, which were explained by Dr. Henry. The evaluation forms are required by the College and they show the applicant’s progress through the twelve-week period.

[40] Dr. Henry testified that when she met with the applicant her response was to become very anxious. The applicant would cry and say emphatically and repetitively that she had to pass the program.

[48] In addition, Dr. Griffiths testified that the three evaluators arranged for a number of individual teachings sessions for the applicant, which was unusual, in her view.

[59] Dr. Wilson also confirmed that although each supervisor and resident is an individual there is a uniform set of standards and expectations that relate to taking an accurate history, physical exam, list of potential diagnosis and a plan. They expect some gaps, but not large ones.

[72] In assessing the credibility of the parties I have relied on the traditional test set out in [Faryna v. Chorny, 1951 CanLII 252 (BC CA)](https://www.canlii.org/en/bc/bcca/doc/1951/1951canlii252/1951canlii252.html), [1952] 2 D.L.R. 354 (B.C.C.A.):

[76] For those reasons, the Application is dismissed.