Shah v. Ontario (Health and Long-Term Care), 2011 HRTO 1254

Human Rights Tribunal of Ontario

Between: Himanshu Shah, Applicant -and- Her Majesty The Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, Respondent

Decision

Adjudicator: David Shannon Date: June 30, 2011 Citation: 2011 HRTO 1254 Indexed as: Shah v. Ontario (Health and Long-Term Care)

Appearances Himanshu Shah, Applicant (Self-Represented) Her Majesty The Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, Respondent (Kristin Smith, Counsel)

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated April 4, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on July 18, 2007.

2The applicant alleges he experienced discrimination in employment because of age and ethnic origin when the respondent denied funding for retraining in General Surgery from the Re-Entry Program of the Ministry of Health and Long-Term Care (“MOHLTC”). He indicates that this is part of a pattern of rejection caused by biased selection criteria, which has discriminated against him. As a result he has been precluded from the funding necessary to advance his career.

3The respondent’s position is that this Application should be dismissed for the following reasons:

1. The Re-Entry Program is not “employment” in the manner contemplated by the Code; and
2. The applicant was not discriminated against on the basis of age or place of origin.

Summary of conclusions

4For the reasons that follow, I find that the respondent did not discriminate against the applicant on the basis of age or place of origin. There is no basis to conclude that Code-related grounds were factors in the respondent’s selection criteria or in its decision not to admit the applicant to the Re-Entry Program. I cannot conclude that the applicant’s place of origin or his age were explicitly or implicitly factored into the program criteria.

5Given that I have found that the respondent did not discriminate against the applicant, it is not necessary for me to determine whether the Re-Entry Program constitutes “employment” or whether the Application falls within any other social ground within the Code.

Facts and Evidence

6Dr. Shah applied to the Re-Entry Program for the 2007-2008 program year. The Re-Entry Program is a Ministry-funded program that allows physicians who are licensed or registered to practice in Canada and currently practicing in Canada to change their area of practice by providing them with opportunities to re-enter post-graduate medical training.

7The issue before the tribunal is whether Dr. Shah was discriminated against on the basis of his age and/or ethic origin in the rejection of his application to the Physician Re-Entry Program.

The Re-Entry Program

8Jeff Goodyear, Director of the Health Human Resources and Policy Branch of the Ministry testified that the purpose of the Re-Entry Program is two-fold: (1) to increase flexibility in the medical training system and provide opportunities for practicing physicians to pursue a different area of practice from the area in which they are currently practicing through a residency program; and (2) to address the need for a variety of physician services in Ontario.

9Getting a residency position through the Re-Entry Program is a two-step process. First, the applicant applies to the Re-Entry Program. Then, if the applicant is accepted into the Re-Entry Program, the applicant must apply to the school of their choice for a residency position, or to the academic program of their choice for admission into that program. Acceptance into the Re-Entry Program does not guarantee an applicant a position in the school or academic program of their choice. Ontario medical schools make admission decisions independently of the selection decisions of the Re-Entry Committee. The accepted Re-Entry candidates must compete against other medical school graduates for residency positions in the area of practice of their choice. The Ministry has no involvement in the selection of candidates for residency positions. Also, not all applicants accepted into the Re-Entry Program will necessarily complete their training.

10The respondent further submits that physicians are not employed by the Ministry, but instead are self-employed on their own or in groups. The Re-Entry Program does not provide employment, and the respondent submits it does not establish a relationship of employment between the Ministry and successful applicants who receive funding through the program. Also, although the Ministry funds residency positions, it is governmental funding that does not create an employer-employee relationship between a resident and the Ministry.

11The applicant contends that this Application is appropriately framed as discrimination in the context of employment because each program that he can apply to for access to surgical training is funded by the MOHLTC. The MOHLTC has oversight of the Re-Entry Program, and must ensure that the committee applies that funding in a non-discriminatory fashion. The applicant noted in his materials that he submits “employment” is the appropriate social area to bring this Application forward for the following reasons as quoted:

• Under the Social Areas under Grounds for Contravention on the Application Form for lodging a Human Rights Complaint, Employment was the Social Area that fitted closest in meaning to the Social Area under which he was lodging my Complaint: none of the other terms used for Social Areas, namely Accommodation (Housing), Vocational Associations, Goods and Services or Contract, was an adequate descriptor of the Social Areas under which I was making my Application to the Human Rights Tribunal of Ontario
• Since Education, Training, Professional Enhancement or similar terms were not included under the Social Areas under which one might make a Human Rights Application, Employment fits closest in meaning, and to the situation, to the Social Areas under which he could apply
• Although he recognized that the Respondent “does not offer employment” to physicians who are able to secure training under one of its programs, the fact that employment is a logical and almost guaranteed sequel to such training having been completed, given the current climate of physician shortages especially in the remote areas of the province, according to the applicant, the result of the training is necessarily employment.
• During the training of selected candidates, they are paid a salary for the work they perform in their respective hospitals. Based on the general understanding of the term “Employment” as meaning that a person is paid a certain amount as compensation for specific work performed, the contract under which these trainees, otherwise known as residents, work and receive training in hospitals, would still qualify for the term “Employment” as it is generally understood. Based on this fact, too, I humbly submit that my Complaint under “Employment” as a Social Area under the Human Rights Grounds of Contravention is still admissible under those grounds
• The Education sub-heading under Goods and Services as a Social Area under Grounds for Contravention would be the next best descriptor of the criteria under which I could apply to the HRTO
• In not filing my Complaint under Contract as a Social Area under Grounds of Contravention, my choice was deliberate, since at the time I applied to any of the MOHLTC’s programs for training there was no contract in existence between the MOHLTC and myself that would have guaranteed me a position for retraining in Surgery. Agreeably, a contract of sorts would have come into existence once I had been “selected” for such a position
• My Complaint with the then body that dealt with the Intake of Human Rights Complaints, the Ontario Human Rights Commission (OHRC), was lodged after I had first enquired about the admissibility of my Complaint. Only then did I proceed to lodge my Complaint.

12I will now outline the evidence submitted respecting the issues of age and place of origin.

The applicant’s application to the Re-Entry Program

13The applicant self-identifies as Indo-Canadian. He was trained to practice medicine in India and licensed to practice in Ontario in 2005. He is currently practicing family medicine. The applicant applied to the Re-Entry Program with the intention of developing a specialty in General Surgery. His application was rejected.

14The respondent contends that the applicant has not been discriminated against based on ethnic origin or age in the decision to reject his application to the Re-Entry Program. It argues that the applicant merely says that he believes his age and ethnic origin were factors in the decision to reject his application, and other than these bald allegations, he has presented no facts or evidence before this Tribunal that would substantiate his beliefs.

15The applicant alleges that the scores assigned to his application for the Re-Entry Program were deliberately lowered to reflect a score below the borderline score as a means to cover up the rejection of his application on the basis of his age and ethnic origin. He also noted demographics of surgical specialties versus non-surgical specialties in Canada. He claims that most of the non-Caucasian physicians in Canada work in non-surgical specialties (e.g. Family Medicine, Internal Medicine and its subspecialties, Paediatrics, Pathology, Psychiatry, and Anaesthesiology), but very few are in the surgical specialties. He did not, however make a claim of systemic discrimination, but rather pointed directly to his specific allegation of discrimination arising from being denied entry to the Re-Entry Program.

16The applicant asserted that “at least 30 percent, if not more, of practicing physicians in Canada are foreign-trained” and the “demographics will show the relative paucity of numbers of non-Caucasian in the surgical specialties, with overwhelming majority of non-Caucasian physicians practicing in the non-surgical specialties, including Family Medicine.” He also indicated that most of the International Medical Graduate (IMG) surgical trainees are well below the age of 40 compared to a larger number of IMG non-surgical trainees who would be well into their forties. The applicant did not provide peer-reviewed reports to support the above claims.

17The respondent submits that the application to the Re-Entry Program was objective and based on the following program evaluation criteria:

1. Projections of physicians supply that support that the speciality/subspecialty requested by the applicants is experiencing current or impending shortages;
2. Length of the applicant’s prior service, and
3. Continuing education, training or experiencing in the speciality as outlined in the applicant’s personal letter.

They submit that the application was rejected because he did not meet the standard program criteria.

18Although not a pre-requisite for an application, priority is given to applicants with prior physician service in Ontario and prior service in underserviced (including rural and northern) communities. Both Mr. Goodyear and Dr. Wilson testified that the priority given to Ontario physicians is a result of the genesis of the Re-Entry Program, namely that it arose from the 1997 agreement between the Ontario Medical Association (“OMA”) and the Ministry. The Ministry’s evidence was that priority is given to physicians with prior service in Ontario because this was a concrete demonstration of a commitment to working in rural and/or remote areas in Ontario.

19In 2007, applications to the Re-Entry Program were reviewed and scored by the Re-Entry Working Group based on standard program criteria. The Ministry received the applications and all application packages were copied and sent to the Re-Entry Working Chair for initial screening. All applications were scored out of a total of sixty (60) points.

20A total of 15 points were available for the “Length of Prior Physician Service in Ontario.” Dr. Wilson testified that based on the information provided in the applications, a total of 30 points were available for prior service in an underserviced community, broken down as follows: 5 points for evidence of past service in an underserviced community, 15 points for evidence of current service and 10 points for evidence of future commitment. Dr. Wilson testified that the Ministry’s Underserviced Area Program’s List of Area Designated as Underserviced (“LADAU”) was used as the basis for scoring an applicant’s past or current experience in an underserviced community. The LADAU is a list of underserviced communities in Ontario.

21Dr. Wilson testified that he did not use lists produced by other provinces to assess service in rural communities outside of Ontario. He explained that this was because the lists produced by other provinces were not equivalent or consistent. Accordingly, he applied a consistent approach to assess service in communities outside of Ontario by using the best data available to him at the time, which he determined to be the Canadian Medical Directory list of physicians. He looked up the community and assessed the rurality of the community based on the number of physicians listed to determine if it was underserviced, and in some cases he also used his personal knowledge of the rurality of the area. He testified that he used this approach consistently in the assessment of all applications that showed past or current service outside of Ontario.

22Dr. Wilson also testified that for evidence of future commitment to practice in an underserviced community assessed the applicant’s connection to an underserviced community in Ontario as identified in the LADAU list. Points were allocated if an applicant showed that he or she had connections in a rural community through previous or current work in the area.

23The admission application form asked whether the applicant had decided on a community where he or she would practice after re-training, and question 4 asked the applicant to outline the region in Ontario where the community was located. Dr. Wilson testified that the answers to these questions showed links to or familiarity with an underserviced area, which demonstrate commitment to practice in that area. As outlined in the scoring sheet, the criteria of “Physician supply: Evidence of current and impending shortages” was applied based on the data provided by ADIN and OPHRDC. ADIN (Assessing Doctor Inventories and Net Flows) predicts future supply of physicians and helps optimize the distribution of medical school graduates among post-graduate family medicine and several primary specialty residency programs. Data from the Ontario Physicians Human Resources Data Center, which maintains registries of all registered physicians practicing in Ontario and post-graduate medical trainees, is used to develop the ADIN model.

24Both Mr. Goodyear and Dr. Wilson testified that the specialties that were to be designated as preferred were determined by the Ministry based on the physicians supply models for different specialties. In cross-examination, Mr. Goodyear testified that the preferred specialties were determined on an objective basis using the ADIN and OPHRDC data. Based on the entire population planning and the data derived from the various sources, the Ministry determines that certain specialties are to be preferred over others. Accordingly, based on the ADIN model, applicants were assigned points as follows, depending on the projected supply of specialties: 10 points for specialties showing decline in the past five years and projected worsening; 5 points for specialties showing no decline in the past five years but projected worsening; 0 points for specialties showing no decline in the past five years and projected steady rate of growth. The final category of evaluation was personal qualities, which included commitment to an underserviced area, relevant continuing education and practice and demonstrated community involvement. Dr. Wilson testified that most applicants were assigned either 4 or 5 out of 5 for this criterion.

25After scoring the applications, Dr. Wilson, as the Chair of the Working Group, identified applications for further review, including applications falling within the borderline score range of 25-30 points and applications raising policy issues. All applications requiring further review were copied and distributed to members of the Re-Entry Working Group for further review based on the evaluation criteria and scoring sheet. All scores were reviewed and confirmed by the Working Group during its annual meeting. The Working Group then ranked the candidates according to the available positions in each specialty. The ranked list was provided to the Ministry, which informed the successful and unsuccessful candidates of the outcome of their application.

26Dr. Wilson testified that Dr. Shah’s application, like other applications, was reviewed and scored using the Ministry’s scoring sheet and based on the supporting documentation provided and the evaluation criteria. He testified that Dr. Shah’s applications received the following points:

• Length of the Prior Physician Service in Ontario: 0/15 points;
• Prior Service in an Underserviced Community: 5/30 points, broken down by:
  • Evidence of past service in an underserviced community (5/5 points)
  • Current practice in an underserviced community (0/15 points)
  • Evidence of future commitment to practice in an underserviced community (0/10 points);
  • Physician supply: evidence of current and impending shortages (based on ADIN and OPHRDC data): 0/10 points;
• Personal qualities: 5/5 points

27The applicant’s application received a score of ten (10) out of sixty (60) points. As Dr. Shah’s score was not within the borderline score range (25-30 points) there was no further review of his application. The applicant received a score of zero (0) for the criterion of “Physician Supply: Evidence of current and impending shortages”. This is because, according to the ADIN model for 2006-2007, “General Surgery” as a specialty area had not shown any decline in the previous five (5) years, and in fact, there was a projected steady rate of growth for this specialty area.

28The respondent submitted that it was not necessary to demonstrate an extensive period of practice in a rural area of practice in Ontario. One or two years of service would have been sufficient to substantially increase the applicant`s score. The applicant did not explain why he did not initially choose to practice medicine in a rural or underserviced area of Ontario when commencing practice in Ontario in 2005.

29The applicant noted that he had been trained in a rural area in India, and upon commencing his practice in Canada he was a physician in a rural and underserviced area of Nova Scotia. The applicant submitted that this past experience was overlooked, and if given its proper consideration then his application would have received a score of 45 out of 60. He believes that by not weighing his work placement in India combined with the fact that he had no choice other than to first practice in Nova Scotia discriminates against him based on place of origin.

30Witnesses for the respondent Mr. Goodyear and Dr. Wilson testified that the age of the applicants was not considered in assessing and selecting applicants for the program. Dr. Wilson testified specifically that in the review of the applicant’s application he did not consider the age of the applicant as it was not relevant and there was no method by which he could assign any score for age. Mr. Goodyear testified that the Ministry started collecting the age of applicant in the 2007-2008 program year when the applicant applied in order to gather statistics for program review and study. At this time the Ministry also collected information concerning the age and gender of the applicants. The Ministry witnesses testified that this information was used broadly to determine trends in applications, and were not recorded at an individual level. The age of the applicants was neither collected for nor used in the assessment of applications to the Re-Entry Program.

31Both Dr. Wilson and Mr. Goodyear also testified that the place of origin was not considered in the assessment of the applicant’s application or any applications for the Re-Entry Program. They explained that this was because the place origin of the program applicants was not known to the Ministry or the selection committee and accordingly, could not be considered in the assessment and selection in the assessment and selection of applicants for the program. Also, it was not part of the standard evaluation criteria and scoring sheet.

32The applicant testified in the hearing that his place of origin was inferred in his application because he disclosed in his application that he received his medical degree in India. He testified that it is very unlikely that a person from another country would travel to India to attend medical school.

Analysis

Did the respondent discriminate on the basis of a prohibited ground?

33The Code prohibits discrimination on the grounds of age and place of origin in all social areas covered by the Code, which at section 3 includes employment. Both age and place of origin based discrimination can take on subtle and covert forms with seemingly benign criteria imposing arbitrary and discriminatory barriers. Subtle forms of discrimination can often only be detected upon examining all of the circumstances. Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture may lead to an inference that racial discrimination was a factor. See: Smith v. Ontario (Human Rights Commission) [2005] O.J. No. 377 (Ont. Div. Ct.), 2005 CanLII 2811 (ON S.C.D.C.); Abdolalipour v. Allied Chemical Canada Ltd (1996), C.H.R.R. Doc. 96-153 (Ont. Bd. Inq.)

34Notwithstanding the many subtleties that may be ascribed to determining whether there was discrimination based on age or place of origin, the applicant must establish a link between the respondent’s conduct and a Code-related ground. If such a link is established, the Tribunal considers whether the respondent has provided a reasonable explanation for its behaviour that is not related to a prohibited ground.

35I must first consider whether the applicant has established a link with the Code based on age or place of origin.

36The respondent’s evidence regarding the Re-Entry Program standards and objectives, as well as their application to the circumstances, was uncontradicted. The respondent’s witnesses’ evidence was consistent throughout the cross-examination.

37I accept that the respondent’s decision regarding the applicant’s application to the Re-Entry Program was assessed based on the criteria set out in paragraph 17, above. The application was scored according to defined criteria, which were applied to all of the applicants to the program.

38The applicant received the following scores:

• Length of the Prior Physician Service in Ontario: 0/15 points;
• Prior Service in an Underserviced Community: 5/30 points, broken down by:
  • Evidence of past service in an underserviced community (5/5 points)
  • Current practice in an underserviced community (0/15 points)
  • Evidence of future commitment to practice in an underserviced community (0/10 points);
  • Physician supply: evidence of current and impending shortages (based on ADIN and OPHRDC data): 0/10 points;
• Personal qualities: 5/5 points

39In my view, the above criteria cannot be said to be discriminatory on their face. There is nothing in the standards themselves that leads me to conclude that the applicant’s age or place of origin were factors in the evaluation of his application.

40Most of the criteria are objective and relate to specific, measurable standards such as the program applicants’ particular experience. Based on the respondent’s witnesses’ evidence, I accept that may of these criteria are based on the identified needs of the program, namely to ensure that doctors who receive funding are likely to meet the needs of Ontarians, have shown a commitment to Ontario and/or to provide care in a rural environment.

41Even had the applicant argued that subjective, Code-related factors were considered in evaluating his application, the only criteria that appears to allow for this degree of subjectivity is “personal qualities”. In this area, the applicant scored full marks, 5 out of 5.

42I further accept the respondent’s witnesses’ evidence that an applicant’s age was not considered in assessing and selecting applicants for the program and that, in fact, there was no method under the evaluation criteria by which the respondent could have assigned any score for age or factored it into its decision. It clearly had no impact in the respondent’s assessment of the applicant’s personal qualities. Although the applicants’ age was noted, this information was gathered for statistical purposes and there is no evidence that it had any bearing upon the applicant’s application.

43The applicant has made a bald assertion that his age was a factor in the rejection of his application to the Re-Entry Program. Based on the evidence presented at the hearing, there is no basis for me to accept this allegation. I find that the applicant’s age was not a factor in the respondent’s decision.

44In terms of the applicant’s place of origin, it is not clear to me that it had a discriminatory role to play in the respondent’s evaluation of the applicant’s application. Turning to the criteria, the applicant did not argue that his score of 0 under “Length of the Prior Physician Service in Ontario” is related to his place of origin. The applicant was licensed to practice medicine in Ontario as of 2005; he applied to the Re-Entry Program for 2007-2008. It appears that the applicant could have practiced medicine in rural Ontario as of at least 2005 but elected not to.

45It is not my role to undo MOHLTC policy. It is, however under the purview of this Tribunal to examine whether the policy is, in and of itself, discriminatory or whether there has been a discriminatory application of that policy. The respondent made a decision to create the admission criteria to the Re-Entry Program with a view to addressing the chronic physician shortage in rural and remote parts of Ontario, especially Northern Ontario. It established criteria that was objectively applied in order to meet that gap in medical services in Ontario. Dr. Wilson testified that if the applicant had chosen to practice in an underserviced area of Ontario for as little as one year, his admissions score would have increased substantially. In the particular circumstances of this case, the fact that the applicant did not practice medicine in an underserviced area of Ontario was based on a personal choice as opposed to a Code-related ground.

46Moreover, as they relate to prior Service in an underserviced community, the respondent gave the applicant full marks (5/5) for “Evidence of past service in an underserviced community”. The other experiential criteria under this rubric relate to current or future experience. There is no basis to conclude that the respondent failed to value the applicant’s past experiences, including experience he may have gained in India.

47In terms of the applicant’s future or current experience, there is no basis to conclude that the respondent’s evaluation of the applicant related or could have related to his place of origin. Except to argue that the rejection of his application was discriminatory, the applicant did not suggest that his current work circumstances or his future aspirations related to or were limited by his place of origin. Rather, he appears to have made personal decisions to work in an area that is within some proximity to Halifax. This personal choice was evaluated in the same way the personal choices of other applicants were considered.

48The applicant argues that the respondent misevaluated his current experience and improperly assessed its rurality. As I have described, the respondent stated that it used the same objective criteria in assessing the rurality of experience and that the applicant’s place of origin had no place in the analysis.

49I accept the respondent’s uncontradicted evidence about its assessment of rurality. My role is not to evaluate whether the system used was appropriate, but rather to determine whether it was discriminatory in that a Code-related ground was a factor in the decision. I find that the evaluation of the rurality of the applicant’s current experience was consistent with the evaluation of other applicants.

50In sum, I find that the applicant’s place of origin had no bearing on the respondent’s evaluation of his application.

51For all of these reasons, the Application is dismissed.