Basic v. Royal Health Care Centre, 2011 HRTO 1629

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zvonimir Basic

Applicant

-and-

Royal Health Care Centre and Andy Gidwani

Respondents

DECISION

Adjudicator: Sherry Liang

Date: August 31, 2011

Citation: 2011 HRTO 1629

Indexed as: Basic v. Royal Health Care Centre

APPEARANCES

Zvonimir Basic, Applicant ) Self-Represented

Royal Health Care Centre, Respondent ) Dr. Kari Edman and ) Dr. Felix Klajner

Andy Gidwani, Respondent ) Meredith Jones, Counsel

1This is an Application filed on August 31, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). By Case Assessment Direction, dated January 10, 2011, the Tribunal directed a summary hearing to receive submissions from the parties on whether the Application has a reasonable prospect of success.

2The Application alleges that the respondents discriminated against the applicant with respect to services on the basis of disability and sexual orientation, when the personal respondent terminated a physician-patient relationship with the applicant. The organizational respondent has asked to be removed from the Application, on the basis that it is not responsible for any of the actions of the personal respondent. Given my determination that the Application is dismissed, it is unnecessary to rule on its request.

3The narrative in the Application states, among other things, that the applicant was Dr. Gidwani’s patient between April 2009 and August 24, 2009. It is alleged that Dr. Gidwani stated to the applicant on August 24, 2009 that “I am an Unhelpable Case” and that he was terminating the physician-patient relationship. The applicant states “this cannot be used as a reason for doctor client termination otherwise all doctors can use it as reason…”

4The applicant also states “Gidwani knows this writer sexuality is Gay is this the real reason for termination?” He also states that he currently has a “law suit” against another doctor “with the Tribunal” and “did Giweani find out about this as Giwani said he knows I Am a very Legal Law suit person why would he make that statement?? Was this termination retaliation for the Law suit against Nawab.”

5In his Response, Dr. Gidwani claims that the breakdown in the physician-patient relationship began with his refusal to endorse the applicant’s special diet allowance form and that the applicant also exhibited inappropriate behaviour towards staff at the respondent Centre. Ultimately, Dr. Gidwani determined that there had been a breakdown of trust and respect between him and the applicant and he was concerned with the repeated inappropriate and rude behaviour towards staff at the clinic. He also denies ever referring to the applicant as an “Unhelpable case”.

6In his Replies, the applicant re-asserts his allegations and disputes Dr. Gidwani’s characterization of events.

DECISION

7The approach taken on a summary hearing was set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994:

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.

8In Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, the Tribunal stated:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

9During the hearing, I asked the applicant to explain why he believed that Dr. Gidwani’s decision to terminate the physician-patient relationship was based on his disabilities or his sexual orientation. As the Application also appears to allege a reprisal under the Code, I asked the applicant to address how he could prove that the termination was intended as retaliation for his having filed an application against another doctor.

10The applicant stated simply that he “honestly believes” that it was not because he was an “Unhelpable case” that the doctor terminated the relationship. He stated that he believed it related to his disabilities, to his sexual orientation, or because of the application he has made to the Tribunal against another doctor. He states that Dr. Gidwani clearly knew about his application against the other doctor, and he believes it was a case of “doctors protecting doctors”.

11With respect to the ground of disability, the applicant stated that he had “complex psychiatric issues”, but apart from this, did not provide any basis for any contention that he was treated adversely by the doctor, because of his psychiatric condition.

12With respect to the ground of sexual orientation, it is not in dispute that at one of the applicant’s regular appointments, on July 9, 2009, he discussed with the doctor his relationship with another man. The applicant states that the doctor’s “body language” suggested to him that he was uncomfortable being in the room with him after that, but that nothing was said to that effect. The applicant did not deny that the doctor continued to see him following that date, until August 24, 2009.

13In submissions, counsel for Dr. Gidwani elaborated on the reasons for the termination of the relationship. One reason related to the dietary allowance issue. The applicant asked the doctor to complete a dietary allowance form. The doctor did not wish to until tests were performed to confirm the applicant’s diagnoses. Before the tests were completed, the applicant went to a walk-in clinic and had the form completed. The doctor states that he did not believe the test results supported the applicant’s entitlement to the dietary allowance but that when he raised this with the applicant, the applicant was dismissive of his concerns.

14Another reason given by Dr. Gidwani for the termination of the relationship was the applicant’s rudeness to the staff at the Royal Health Centre.

15Dr. Gidwani also states that ultimately, the applicant’s pain management and complex psychiatric issues proved to be beyond his skills to treat. He states that he tried to refer the applicant to various resources and specialists but that the applicant was unwilling to make use of those resources.

16Dr. Gidwani states that in a meeting with the applicant, he explained the reasons for terminating the relationship. He also provided the applicant with a 30-day prescription for his current medication to provide him with time to find another health care provider. He also states that he also understood that the applicant’s previous doctor had agreed to resume the applicant’s care if Dr. Gidwani was unable to continue the care.

17The applicant disputed some of the facts set out in the Response. He disputes that he was unwilling to follow up on other resources or specialists. He disputes that his previous doctor was willing to take him back as a patient. He also disputes that he was rude to the staff at the health care centre.

18Even if I accept the facts asserted by the applicant, I am not satisfied that the applicant can show that Dr. Gidwani terminated the physician-patient relationship for discriminatory reasons related to the applicant’s disabilities or sexual orientation. Indeed, the narrative in his Application itself suggests that he can only speculate that those grounds were the basis for the termination.

19Further, the doctor has provided the reasons for the termination, and despite the fact that the applicant disagrees with some of the background to those reasons, he has not provided any facts that would suggest they were a mere pretext for a discriminatory action. Even if part of the reason was that the applicant had complex psychiatric issues that the doctor believed to be beyond his ability to treat, this is not in itself discriminatory.

20With respect to the assertion of reprisal, the facts put forward by the applicant provide no basis for a finding that the decision to terminate the relationship was intended as retaliation for his having made an application under the Code against another doctor.

21In sum, I find that there is no reasonable prospect that the applicant could establish a breach of the Code by the respondents. The Application is accordingly dismissed.