Andres v. De La Torre, 2010 HRTO 2523

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eudelyn Andres

Applicant

-and-

Josephine De La Torre

Respondent

interiM DECISION

Adjudicator: Alison Renton

Date: December 22, 2010

Citation: 2010 HRTO 2523

Indexed as: Andres v. De La Torre

APPEARANCES

Eudelyn Andres, Applicant ) Self-represented

Josephine De La Torre, Respondent ) Dara Lambe, Counsel

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”) alleging discrimination on the basis of place of origin and disability in services, specifically medical services. The Application was delivered to the respondent who filed a Response. The applicant has provided a Reply but only commented on one aspect of the Response.

2The Tribunal reviewed the pleadings and a Case Assessment Direction (“CAD”) dated October 7, 2010 directed that the matter be scheduled for a Summary Hearing, pursuant to Rule 19A of the Tribunal’s Rules of Procedure. This Rule reads, in part, as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

3In the CAD, at paras. 3 – 6, the Tribunal noted:

As I understand that essence of the applicant’s allegations in the Application, they are as follows: (1) the respondent refused to treat her because she believed Fibromyalgia does not exist; (2) she incorrectly completed LTD forms; and (3) she made a comment that it is unusual for Asian or Filipino persons to have Fibromyalgia.

Rule 9.1 of the Tribunal’s Rules of Procedure reads as follows:

An Applicant who intends to prove a version of facts different from those set out in a Response must deliver and file in Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.

The Response states, among other things, that over the one-year period during which the respondent treated the applicant for chronic pain she provided various treatments and referrals for this condition. The Response also states that the applicant asked to be removed from the respondent’s patient roster after she was unhappy with the way the respondent completed her Long-Term Disability Forms.

In my view, the parties’ pleadings raise serious concerns as to whether the application can succeed. With regard to the first allegation, the applicant has not disputed the respondent’s statement that she telephoned the respondent’s office on February 11, 2010 to ask that she and her family be removed from the respondent’s patient roster. With regard to the second, these appear, on their face, to relate to the respondent’s exercise of her medical expertise and not discrimination under the Code. As for the third allegation, it seems to be doubtful that a comment made by a physician, in the course of treating a patient, expressing an opinion about the existence of a medical condition claimed by the applicant or its prevalence in certain ethnic groups is discrimination on the basis of disability or ethnic origin. Differences in the prevalence of certain illnesses in different ethnic groups are commonly the subject of medical comment and may be based on biological differences. The Tribunal is also concerned that this Application may be an attempt by the applicant to use the human rights system to have the respondent change her medical opinion as expressed on LTD forms or in letters to her employer, and may be an abuse of the HRTO’s process.

The Parties’ Submissions

4The Application is brief and sets out rather sparse allegations against the respondent. During the applicant’s submissions, she provided a number of factual details that were not set out in her Application, including an assertion that the respondent told her, while they were both speaking in their “own language”, that it was uncommon for Filipinos to have Fibromyalgia and “it might be in your head”.

5It also became apparent during the conference call hearing that the applicant alleges the respondent terminated her as a patient on January 26, 2010, rather than the reverse, building upon the allegation in her Application that “she [the respondent] declined to continue her care [for the applicant]….[and] ask[ed the applicant] to look for another MD”. She confirmed that on February 11, 2010, she did call the respondent’s office to officially ask that she be removed from the respondent’s patient roster and provided an explanation for doing so.

6The applicant submits that the respondent’s conduct amounts to discrimination and confirmed that a complaint with the College of Physicians and Surgeons remains outstanding.

7The respondent requests that the Application be dismissed because there is no reasonable chance of success. The allegations in the Application and made during the conference call hearing, which are assumed to be true for the purposes of the conference call hearing, are about clinical competency and clinical observations rather than discrimination. The respondent submits that she is clinically competent, properly exercised her medical skills and made comments based upon her medical knowledge.

8The respondent denies the allegation that she initiated the termination of their doctor-patient relationship, and reiterated para. 20 of her Response that stated, “…[the applicant] informed [the respondent] and her staff that she wanted to be removed from [the respondent’s] patient roster so that she could secure a new family physician in the area.

ANALYSIS

9The issue that Rule 19A directs the Tribunal to determine is whether the Application has “a reasonable prospect of success”. It is a new rule and so the jurisprudence in this area is at its early stages.

10In the first case decided under the new procedure, Dabic v. Windsor Police Service, 2010 HRTO 1993, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing. At paras. 7 – 9, the Tribunal stated:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

11In this case, it is clear that there are conflicting positions about which party initiated the termination of the doctor-patient relationship and what was said on January 26, 2010. The conflicting positions raise credibility issues on central points that have been raised in the Application, which makes a final determination in this matter at this early stage in the process difficult. Accordingly, I determine that the Application can continue to proceed through the Tribunal’s procedure. Of course, deciding that the Application can continue to proceed is not a final decision on the merits of the Application.

12As both parties have expressed a willingness to attend mediation, the Tribunal will schedule the Application for mediation.

13Given the amount of new factual details provided during the conference call hearing by the applicant, the Tribunal directs the applicant’s attention to Rules 1.7(c) and 17 of the Tribunal’s Rules of Procedure. The applicant should take steps to ensure that the factual details upon which she would rely at a hearing are either set out in the Application and/or in her witness statement.

14The Tribunal may also, upon request of the parties or on its own initiative, seek the parties’ submissions on whether the Application ought to be deferred in light of the outstanding complaint to the College of Physicians and Surgeons if the Application is not settled at mediation.

15I am not seized of this matter.