J.M. v. St. Joseph’s Health Centre, 2011 HRTO 1703

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J. M. Applicant

-and-

St. Joseph’s Health Centre and Steven Rhee Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: September 15, 2011 Citation: 2011 HRTO 1703 Indexed as: J.M. v. St. Joseph’s Health Centre

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 2, 2009, alleging discrimination on the basis of disability in services. The Application is presently scheduled for hearing on September 29 and 30, 2011. This Interim Decision provides directions regarding the hearing and determines a Request for Order During Proceeding that the Tribunal apply to Divisional Court and request that counsel for the respondent Hospital be held in contempt.

Background

2The background to this Application is set out in a number of earlier decisions of the Tribunal (see for example, 2010 HRTO 2201 and 2010 HRTO 633) and will be briefly summarized again.

3The Application arises out of the applicant’s interaction with various medical personnel working at or out of St. Joseph’s Health Centre, a hospital and its mobile crisis unit, in the period September 2006 to June 2008. Among other things, the applicant alleges that she was discriminated against on the basis of disability when nurses with the mobile crisis unit attended at her home along with the police and refused her request to decline a mental health assessment, threatened her with criminal arrest and harassed her. The applicant also alleges that she was discriminated against by a physician at the hospital, Dr. Rhee, when he reported her to the Ministry of Transportation because she was suffering from a mental illness. The applicant states that “it appears that the doctor’s decision to report me… was a result of me being arrested under the act rather than a medical diagnosis inferred by observations of mental health instability”.

4Initially, the applicant only named the respondent Hospital. By Interim Decision dated November 3, 2010, Dr. Rhee was added as a party for reasons outlined in that decision: 2010 HRTO 2201.

5On December 6, 2010, Dr. Rhee filed a Response. In his Response, Dr. Rhee denies the allegations. In particular, Dr. Rhee requests that the Application be dismissed against him because there is no evidence of prima facie discrimination and in the alternative that the Application is statute-barred by virtue of s. 203(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”).

6Section 203 of the HTA provides as follows:

203. (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).

(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).

(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).

7By Case Assessment Direction dated March 8, 2011, the Tribunal sought further submissions from the parties on the position taken by Dr. Rhee.

8The applicant filed a Reply to Dr. Rhee’s Response on December 20, 2010, and further submissions on March 24, 2011, and April 1, 2011. In her Reply and submissions, the applicant provides further details about the allegations made against Dr. Rhee. Among other things the applicant states that Dr. Rhee and the hospital staff did not observe any signs of distress or mental instability, Dr. Rhee failed to assess her mental health and gauge her fitness to drive (which causes her to believe that his decision was based on the report of the police that she was suicidal), and Dr. Rhee delayed in reporting the applicant to the Ministry, which suggests that he did not consider her to be a risk on the road. The applicant requests that the issue of whether the allegations against Dr. Rhee should be dismissed be determined in an oral hearing.

9Dr. Rhee has also filed additional submissions on April 1, 2011, and May 2, 2011. In his submissions, Dr. Rhee re-frames his remedial request asking that the Application be dismissed based on s. 203(2) of the HTA or in the alternative that a summary hearing be held in order to determine whether the Application should be dismissed against him. Dr. Rhee takes no position on whether an oral hearing is required.

10The respondent Hospital has provided no submissions on the appropriateness of the allegations against Dr. Rhee.

11Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure provide 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.

12In my view, having regard to the issues raised, I find it appropriate to hold a summary hearing on whether the allegations against Dr. Rhee should be dismissed on the basis that there is no reasonable prospect that those allegations in the Application will succeed. I direct that the summary hearing proceed on the first of the two scheduled hearing dates, namely September 29, 2011.

13Details about the nature of a summary hearing are set out in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

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.

14At the summary hearing, the applicant will make argument first. The applicant shall make argument about why the Application should not be dismissed as against Dr. Rhee as having no reasonable prospect of success, and point to the evidence on which the applicant will prove on a balance of probabilities a link between Dr. Rhee’s actions and the ground of discrimination cited in the Application, namely disability. In the circumstances, in light of Dr. Rhee’s alternative request to dismiss the Application as against him on the basis of s. 203 of the HTA (the “jurisdictional issue”), the applicant should be prepared to make any further submissions in support of her position that the Tribunal has jurisdiction to hear the allegations.

15The respondent Dr. Rhee should be prepared to make submissions on the jurisdictional issue and should be prepared to provide, if requested by the Tribunal, evidence on how his conduct in dealing with the applicant falls within the scope of section 203(1) of the HTA. At the summary hearing, Dr. Rhee should also be prepared to make submissions, if requested by the Tribunal, on whether the Application should be dismissed as having no reasonable prospect of success.

16If I determine that the allegations in the Application against Dr. Rhee are outside of the Tribunal’s jurisdiction or have no reasonable prospect of success, they will be dismissed. If the Tribunal finds otherwise, the allegations will continue as part of the remainder of the case to be heard on the merits.

17The parties should be prepared to continue with the hearing on the merits following the summary hearing on the allegations against Dr. Rhee on the afternoon of September 29, 2011.

18While I recognize that the parties have already provided documents, if the parties wish to rely on any further documents or cases not already filed for purposes of the summary hearing they shall provide the same within 10 days of the date of this Interim Decision.

19The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on its website at www.hrto.ca.

Outstanding Disclosure Issues

20By Case Assessment Direction dated March 8, 2011, I sought submissions from the parties on what appeared to be the outstanding issues of disclosure. As of that date, based on submissions filed by the applicant, the following outstanding issues were identified:

i. The applicant’s request that the proposed evidence of the psychiatric nurses be limited to describing their interaction with the applicant and any observations that were recorded in their notes;

ii. The applicant’s request for detailed witness statements for each of the psychiatric nurses, along with a statement of their qualifications;

iii. The applicant’s request for a clear copy of Dr. Rhee’s examination report (or an order that he transcribe the report);

iv. The applicant’s request for the date on which Dr. Rhee reported the applicant to the licensing centre; and

v. The applicant’s request for the date on when her health records were forwarded to Dr. Rhee.

21In his submissions dated March 30, 2011, it appears that Dr. Rhee has now provided the disclosure set out in paragraphs iii to v. The applicant shall advise if she takes a contrary position within five days of the date of this Interim Decision.

22In her subsequent emails of March 24, 2011, and April 21, 2011, the applicant has requested or clarified that she is also seeking the following disclosure:

i. Particulars of the date on which her health records were forwarded to Dr. Rhee or to any other staff member/department of the Hospital (which the applicant states would be recorded in an electronic system used by the Hospital to record the date on which records are released and to whom (identified for the time periods October 10, 2008 and “a week prior to that date”; October 10 to 20, 2008, and Februrary 2 to 11, 2008).

23On April 29, 2011, the respondent Hospital filed its position on the outstanding disclosure issues. The applicant filed a brief response by email. The parties are in agreement that the issues be dealt with in writing.

Request to Limit Evidence of Psychiatric Nurses

24The respondent has filed a summary of the proposed evidence of each of its witnesses including the psychiatric nurses. For the most part the proposed evidence appears to be in respect of the interactions with and observations made during each witness’ interaction with the applicant, which on its face and subject to any objections, would appear to be relevant. An exception to the foregoing is the inclusion of the proposed evidence about the nature of the applicant’s illness, its associated symptoms and the behavioural and interpersonal manifestations of it.

25At this stage, I do not find it appropriate to make an order restricting the scope of the proposed evidence regarding any of the witnesses who are identified as nurses. However, I would note that it is not apparent why it would be relevant to hear evidence about the nature of the applicant’s illness, its symptoms, and the behavioural and interpersonal manifestations from the nurses who interacted with her. In order to ensure that the hearing proceeds efficiently, if the respondent Hospital wishes to present this evidence through any witness, the respondent Hospital should provide a more detailed summary of what evidence each witness would provide in this regard and its submissions as to the relevance of the proposed evidence within seven days of the date of this Interim Decision.

26If necessary, I will hear the response of the other parties at the hearing in the context of any objection made and address any disputes at that time.

Request for Detailed Witness Statements of Psychiatric Nurses and Qualifications

27Based on my review of the witness statements filed by the respondent Hospital on July 29, 2011, it appears that, for the most part, the respondent Hospital has set out a summary of the proposed evidence of each witness inclusive of dates and with reference to chart entries and other documents. The one exception relates to the last paragraph of each witness statement pertaining to the proposed evidence about the applicant’s illness, symptoms and related topics which I have addressed above.

28Based on the foregoing and in the absence of a specific area of concern being identified, I do not find it appropriate to make an order to produce a more detailed witness statement beyond my order above.

29On consent of the respondent Hospital, I order that the Hospital produce a statement of the qualifications for each of the psychiatric nurses that it intends to call at the hearing within seven days of the date of this Interim Decision.

Particulars of Health Records forwarded to Staff

30The respondent does not appear to object to producing this information for the periods February 2 to 11, 2008, and October 10 to 20, 2008, if there are records and/or an audit trail of the information and it can be produced using reasonable efforts. The respondent did not address the week prior to October 10, 2008, in its submissions.

31As a result of the foregoing, the respondent Hospital is ordered to produce particulars of the date[s] on which the applicant’s health records were forwarded to Dr. Rhee or to any other staff member/department of the Hospital in the time periods February 2 to 11, 2008, and October 10 to 20, 2008, as may be reflected in any records or audit trail maintained by the respondent Hospital, within seven days of the date of this Interim Decision. If the respondent Hospital believes that the production of the same will be onerous it shall advise the Tribunal within five days of the date of this Interim Decision and indicate what relief, if any, it seeks from this order.

32I have not made an order in respect of the week that pre-dates October 8, 2008. On the basis of the submissions made, it is not apparent how this period is arguably relevant. If the applicant wishes to provide a further explanation as to why that period is relevant she may do so by filing an amended request within seven days of the date of this Interim Decision.

33The Tribunal will address any objections to the relevance of the evidence including any of the additional documentation ordered to be produced, in the normal course of the hearing.

Request that Tribunal State a Case of Contempt to Divisional Court

34The applicant filed a Request for Order During Proceeding on June 15, 2011, seeking an order that the Tribunal make an application to Divisional Court to request that the respondent Hospital’s counsel be “held in contempt”.

35In the Request and subsequent Reply filed by the applicant, the reasons in support of her Request are provided. In her submissions, while the applicant refers to a letter of June 3, 2011, I have assumed that this reference was a typographical error and the date of the applicable letter is June 6, 2011.

36In support of the Request, the applicant makes general allegations that counsel for the respondent Hospital has engaged in a pattern of impropriety, has caused delays and forced the applicant to file lengthy submissions, has failed to file requests in the proper form, has not made timely disclosure and arrives late to conference calls. In addition, the applicant identifies the following specific examples of such conduct:

1. The respondent has not provided a proper response to the March 8th and April 6th Case Assessment Directions as the witness statements are not sufficiently detailed and the respondent has not provided the disclosure sought by the applicant. The applicant states that the respondent has not clarified when it will be able to advise the Tribunal as to the availability of a record or audit trail;

2. The respondent has not filed a complete Response notwithstanding the Tribunal’s direction to do so;

3. Respondent counsel made specific inquiries of another case in the absence of a Request for Order During Proceedings or a written explanation of the relevance of the request;

4. Respondent counsel did not produce an arguably relevant document in a timely manner, i.e. a memorandum between the police and crisis workers;

5. The respondent sought to rely on third party hospital charts as part of its disclosure. The applicant states that this caused the Tribunal to seek submissions from the parties and resulted in a delay in the proceeding, which ultimately was an unnecessary delay because the respondent eventually decided not to rely on the documents;

6. Respondent counsel delayed the case when the Case Assessment Direction dated March 6, 2011 was sent to a different fax number (although one reflected on other correspondence from the respondent);

7. Respondent counsel did not file its request for an adjournment of the November 8, 2010 hearing date by Request For Order During Proceeding. (The request was made by email on July 30, 2010).

8. Respondent counsel has been late connecting to all the conference calls.

37The respondent Hospital has filed a response objecting to the Request. The respondent submits there is no merit to the allegations, there is no authority for the Tribunal to make such an order and the respondent has used best efforts to be cooperative, fair, reasonable and responsive to the Tribunal and applicant. The respondent also states that a number of these issues have been raised and addressed earlier, a position which the applicant herself agrees with, although the applicant suggests that the examples demonstrate that the conduct “has been atypical [sic] throughout her handling of the case”.

38The applicant states that the Tribunal may dispose of the Request as it sees fit. The respondent Hospital asks that it be dealt with in writing.

39Dr. Rhee has not filed submissions on the substance of the request or the manner of hearing.

41Under s.13 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”), the Tribunal may, on its own motion or on the motion of a party to the proceeding, state a case for contempt to the Divisional Court. However, in determining whether to do so, the Tribunal must decide whether a prima facie case has been made out that conduct described in s. 13 occurred and if it determines that it has, only then should it take the step of stating the case to Divisional Court (see, for example, McKinnon v. Ontario (Correctional Services), 2011 HRTO 263, at paragraphs 4 and following).

42In the circumstances of this case, I do not find there is any basis for making a finding that a prima facie case of contempt is made out and concluding that the Tribunal should exercise its discretion to make such an application to the Divisional Court. I have carefully considered the submissions of the applicant but do not find that this is a case where the respondent Hospital or its counsel have engaged in any conduct from which I can reasonably conclude that the respondent has disobeyed my directions and has done so deliberately and wilfully (criteria which are necessary to reaching a conclusion that a prima facie case of contempt can be established).

43The applicant suggests that the respondent Hospital/counsel has not provided a response to the Case Assessment Directions of March 8th and April 6th nor has a complete Response been filed. I see no basis for concluding that the respondent has not provided a response to either of the CADs referenced and/or the Application, which would be indicative of disobeying an order or direction. The respondent filed a response to the CADs (the applicant’s concerns about sufficiency have been addressed above). Further, any concerns about the sufficiency of the Response were addressed during a conference call on August 20, 2010. The respondent filed additional particulars related to its Response on September 16, 2010.

44The applicant also relies on the respondent’s inquiry seeking clarification about related applications. While an inquiry was made (an inquiry which was not objected to at the time and which I did not find inappropriate), the fact of an inquiry is not indicative of contempt in any way.

45Further, the applicant relies on various examples of delay as summarized in subparagraphs 36 (4), (5) and (6); an allegation of seeking an adjournment by email (subparagraph 7) as opposed to a formal Request for Order During Proceeding Form; and the respondent counsel being late for two conference calls (subparagraph 8). Even accepting that these events occurred, which I would not characterize in the manner described by the applicant, I see no basis on which I could conclude that such examples are indicative of behaviour that is contemptuous. There is no allegation that the respondent Hospital and/or its counsel has failed to comply with a specific order or direction and/or has done so in a deliberate and wilful manner.

46For all of the above reasons, I do not find that there is any basis for finding that this is an appropriate case to state a case of contempt to the Divisional Court. The Request is denied.

47I order as follows:

1. The applicant and respondents shall file any further documents or cases in respect of the summary hearing within ten days of the date of this Interim Decision;

2. The applicant shall advise if any of the disclosure identified in paragraphs 20 iii), iv) or v) remains outstanding within five days of the date of this Interim Decision;

3. If St. Joseph’s Health Centre wishes to call evidence about the nature of the applicant’s illness, its symptoms, and the behavioural and interpersonal manifestations from the nurses who interacted with her, the respondent Hospital should provide a detailed summary of what evidence each witness would provide in this regard and its submissions as to the relevance of the proposed evidence within seven days of the date of this Interim Decision.

4. On consent, St. Joseph’s Health Centre shall produce a statement of the qualifications for each of the psychiatric nurses that it intends to call at the hearing within seven days of the date of this Interim Decision.

5. St. Joseph’s Health Centre shall produce particulars of the date[s] on which the applicant’s health records were forwarded to Dr. Rhee or to any other staff member/department of the Hospital in the time periods February 2 to 11, 2008, and October 10 to 20, 2008, as may be reflected in any records or audit trail maintained by the respondent Hospital, within seven days of the date of this Interim Decision. If the respondent Hospital believes that the production of the same will be onerous it shall advise the Tribunal within five days of the date of this Interim Decision and indicate what relief, if any, it seeks from this order.

6. The applicant may file an amended request for particulars related to the forwarding of the applicant’s health records to Dr. Rhee or to any other staff member/department of the Hospital in respect of the period of the week prior to October 8, 2008, within seven days of the date of this Interim Decision.