Douglas Wilson v. Dixie Road Medical Association and Jean Barwell, 2011 HRTO 1607

Douglas Wilson

Applicant

-and-

Dixie Road Medical Association and Jean Barwell

Respondent

decision

Adjudicator: Keith Brennenstuhl

Date: August 26, 2011

Citation: 2011 HRTO 1607

Indexed as: Wilson v. Dixie Road Medical Association

Douglas Wilson, Applicant ) Self-represented

Dixie Road Medical Association ) Dara Lambe, Counsel and Jean Barwell, Respondents )

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") alleging discrimination with respect to services on the basis of disability. A Request for Summary Hearing was made by the respondents.

2By Case Assessment Direction dated February 17, 2011, the Tribunal directed that a Summary Hearing be held by teleconference. It stated as follows at paragraph two:

The parties shall be prepared to address the issues raised by the respondents in their Request including: (i) whether the Application is barred by s. 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended: and (ii) whether the applicant's allegation, which I understand to be that the respondent Physician's diagnosis of possible alcoholism and notification of the Ministry of Transportation was improper and not warranted, in fact relates to discrimination on the basis of disability.

ANALYSIS

Summary Hearings

3The summary hearing process is outlined in Rule 19A of the Tribunal's Rules of Procedure. In a summary hearing the issue is whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or a part thereof will succeed.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Application to the Facts

5The personal respondent is a medical doctor licensed to practice in the Province of Ontario. She carries on practice as a family physician at Dixie Road Medical Association ("the clinic"), the organization respondent.

6The applicant was a patient at the clinic for approximately 20 years. When his doctor retired, Dr. Barwell assumed care for the applicant. At his first appointment with Dr. Barwell, the applicant advised her that he required a physical examination to satisfy the mandatory physical examination requirements mandated by the Ontario Ministry of Transportation ("MTO") for commercial truck drivers.

7Following the examination, Dr. Barwell recorded the results of her examination on the form required by the MTO. She disclosed that the applicant admitted to consuming six alcoholic beverages per day. She also placed a question mark beside the diagnosis of alcoholism. The completed form was then sent to the MTO.

8Shortly thereafter, when the applicant's employer was told by MTO that the applicant's commercial license was suspended, the applicant lost his job. The applicant maintains that his license was suspended because Dr. Barwell reported to MTO that he drank six alcoholic beverages a day and raised the possibility of alcoholism.

9The applicant maintains that he never did tell Dr. Barwell that he drank six alcoholic beverages a day and while he did have substance abuse challenges 10 years earlier, a matter to which Dr. Barwell was privy, he states that he is not an alcoholic. He claims that Dr. Barwell discriminated against him when she reported to the MTO that he drank six alcoholic beverages a day and that he was possibly an alcoholic.

Statutory Bar

10The respondents plead that the applicant has no reasonable prospect of success because the application before this Tribunal is barred by the operation of section 203 of the Highway Traffic Act. Section 203 reads:

Report of medical practitioner

(1) Every legally qualified medical practitioner shall report to the Registrar the name, address and clinical condition of every person sixteen years of age or over attending upon the medical practitioner for medical services who, in the opinion of the medical practitioner, is suffering from a condition that may make it dangerous for the person to operate a motor vehicle. R.S.O. 1990, c. H.8, s. 203 (1).

No action for complying with subs. (1)

(2) No action shall be brought against a qualified medical practitioner for complying with this section. R.S.O. 1990, c. H.8, s. 203 (2).

Reports privileged

(3) The report referred to in subsection (1) is privileged for the information of the Registrar only and shall not be open for public inspection, and the report is inadmissible in evidence for any purpose in any trial except to prove compliance with subsection (1). R.S.O. 1990, c. H.8, s. 203 (3).

11While at first blush it would appear that the application is barred by virtue of section 203(2), there is authority for the proposition that the Code has primacy over all other statutes and that a bar would only be effective if the statute specifically provides that it is to apply despite the Code (see D.F. v. Children's Aid Society of Hamilton, 2009 HRTO 1485 and Boone v. Catholic Children's Aid Society, 2009 HRTO 2098). However, given my findings below, it is not necessary for me to decide whether the Code prevails over this section of the Highway Traffic Act.

Discrimination On The Basis Of Disability

12During the summary hearing the applicant made limited submissions. Essentially he complained that Dr. Barwell's diagnosis of possible alcoholism was improper and not warranted. He indicated that he is not an alcoholic, that he never told Dr. Barwell that he drank six alcoholic beverages a day and while he had alcohol abuse challenges 10 years earlier, he felt that it was inappropriate for Dr. Barwell to consider that factor in her current assessment of his health.

13In my view, there is no reasonable prospect that the applicant can prove discrimination on the basis of disability. It is evident that the applicant is not in agreement with Dr. Barwell's diagnosis of possible alcoholism. He also alleges that the diagnosis was based on an error of fact. In my view, however, disagreeing with a clinical diagnosis does not, in the absence of some additional indicator of discrimination, constitute an allegation of discrimination even if the diagnosis is wrong or based on inaccurate information.

14The British Columbia Human Rights Tribunal was faced with a situation similar to the applicant's in Egan v. Dr. Kennedy, Dr. O'Kane and St. Paul's Hospital, 2006 BCHRT 15 ("Egan"). Ms. Egan complained that she was discharged from the In-Patient Program of Eating Disorders Clinic following positive drug tests. Ms. Egan alleged that the respondents discriminated against her due to her admitted past drug use and her perceived present drug addiction. The Tribunal stated:

I find that Ms. Egan has failed to allege acts or omissions which could contravene the Code. Ms. Egan is correct in her submission that discrimination on the basis of addiction, real or perceived, is prohibited under the Code. That does not mean, however, that for a physician to take drug use, real or perceived, into account in making treatment decisions is necessarily discrimination under the Code. Drug use may be a highly relevant factor which a physician must take into account in order to make sound professional treatment decisions. In this case, assuming the facts alleged to be true, the physicians made the decision to discharge Ms. Egan from the In-Patient Program and to refuse to prescribe her medications on the mistaken belief that she had used drugs while in the In-Patient Program. Even if they were wrong in their belief that Ms. Egan had used drugs, the decisions to discharge her and to refuse to prescribe her medications were based upon their medical judgement, taking onto account the factors which they, in their professional opinions, considered relevant. Even if wrong or based on inaccurate information, absent some additional indicator of discrimination, such decisions are not acts or omissions which could contravene the Code. (para. 23)

15For the same reasons as set out in Egan I dismiss the Application. The applicant does not agree with how Dr. Barwell did the assessment and he does not agree with the clinical opinion of Dr. Barwell. He alleges the diagnosis of Dr. Barwell was based on an error of fact, but a medical diagnosis based on an error of fact is not in and of itself sufficient to give rise to a finding of discrimination under the Code. In all the circumstances, the applicant has not alleged facts, which, if proven, could constitute discrimination under the Code.

16I conclude that the application has no reasonable prospect of success.

17For these reasons the Application is dismissed.

Dated at Toronto, this 26th day of August, 2011.

"Signed by"

Keith Brennenstuhl

Vice-chair