HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Todd Fucile on behalf of Sharon Fucile

Applicant

-and-

The College of Physicians and Surgeons of Ontario

Respondent

DECISION

Adjudicator: Kevin Cleghorn

Date: November 4, 2011

Citation: 2011 HRTO 2008

Indexed as: Fucile v. The College of Physicians and Surgeons of Ontario

APPEARANCES

Todd Fucile, Applicant ) Self-represented ) ) The College of Physicians and Surgeons ) Michelle Gibbs, Counsel of Ontario, Respondent ) )

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 in services on the basis of disability.

2By Case Assessment Direction (the “CAD”) dated September 16, 2011, the Tribunal directed that a summary hearing be held in this matter by teleconference. It stated as follows at paragraph 4:

The hearing scheduled for October 13, 2011 is converted to a summary hearing, which will be held by teleconference. The Registrar will send a Notice of Summary Hearing. The applicant will proceed first by answering the respondent’s arguments in the Request for Summary Hearing.

ANALYSIS

Summary Hearings

3Rule 19A of the Tribunal’s Rules of Procedure reads 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 of witness statements.

4The test at the summary hearing is whether the applicant has a reasonable prospect of success. If, after considering the arguments made by the applicant, there is a basis to believe that there is a reasonable prospect of success, the Application shall be considered at a merits hearing in which all evidence shall be presented and witnesses heard from in the ordinary course.

5In Dabic v. Windsor Police Service 2010 HRTO 199 at paragraphs (paras.) 8-10, the Tribunal commented on the type of inquiry that is involved in a summary hearing:

In some cases, the issue at a summary hearing may be whether, assuming all of 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 the 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.

Arguments of the Applicant

6The crux of the applicant’s position is that his wife, Sharon Fucile, has been discriminated against by the respondent. Ms. Fucile has a debilitating health condition (recurring cancerous tumours) and a resulting need for opioids to assist with pain management. Her ability to obtain the medication has been impacted by the policy position of the respondent which governs the practices and professional behaviour of physicians. According to Mr. Fucile, Ms. Fucile has been required to undergo drug testing ordered by her physician. The drug testing was required in order to comply with the respondent’s policy in terms of prescribing opioids. It was also required in order to adhere to a personal undertaking given by Ms. Fucile’s physician following an investigation into his medical practice. Once the drug test result was obtained, Ms. Fucile’s physician declined to prescribe further opioids for her. She has had to pursue alternative methods of pain management, such as acupuncture. None of the alternative methods has been completely successful in alleviating her pain. Mr. Fucile states that his wife remains in daily pain and has now been denied the medication she needs in order to enjoy a reasonable quality of life. The denial of this medication to his wife stems directly, in his view, from a discriminatory policy that was not drafted with patients in mind, or with their input being considered. Mr. Fucile was concerned that his wife’s medical chart had been reviewed by the respondent prior to the decision being made to enforce drug testing on her. He was assured by the respondent that his wife’s chart was never reviewed during the course of its investigation of her physician.The drug testing, as mentioned, eventually resulted in the decision being made by her physician to not prescribe her any additional opioids. He maintains that Ms. Fucile has done nothing wrong but has been treated unfairly. The unfair treatment stems from the respondent’s policy guidelines in relation to prescribing and administering opioids, which physicians are bound to follow notwithstanding the consequences to their patients. No human rights complaint, or any complaint for that matter, has been made by Ms. Fucile as against her own physician.

Arguments of the Respondent

7The respondent submits that theTribunal has no jurisdiction to hear this Application. The heart of this matter for the respondent is that the policy being impugned is a “decision” of a statutorily authorized body which is beyond the authority of the Tribunal to review or scrutinize. The decision is encompassed in the national protocol known as the Canadian Guideline for Safe and Effective Use of Opioids for Chronic Non-Cancer Pain of April 30, 2010 published by the National Opioid Use Guideline Group.

8As far as the respondent is concerned, the applicant was not rendered a “service” by the respondent within the meaning of the Code. The respondent may have received a “service” from her own physician but there is no nexus as between the applicant and the respondent to trigger the applicability of the Code. The respondent is not involved in patient care, never prevented Ms. Fucile from obtaining a second opinion about her treatment and did not act in bad faith. If any “service” was provided by the respondent, it was provided to Ms. Fucile’s physician and not to Ms. Fucile. As such, the respondent seeks to have the Application dismissed.

Reply of the Applicant

9The applicant replies that the protocol of the respondent in relation to opioid administration impacts upon people. The practices of physicians in that regard are controlled by the respondent, which must be accountable for the negative consequences on people generally, but on Ms. Fucile in particular. He contends that the protocol is discriminatory because its consequence is to deny a vulnerable segment of the population necessary medication. Ms. Fucile, as a result of her health issues, is lumped in with “drug addicts” and “junkies” due to circumstances beyond her control.

10The applicant argues that the physician did what he had to do to maintain his license to practice medicine and to avoid further sanctions. He believes that the people of Canada would not be happy if they knew what was going on in this regard.

The Law

11The Application itself and the submissions of the applicant are devoid of particulars of any discrimination per se illustrating how Ms. Fucile was treated differently in terms of her ability to access medication. As the respondent noted, the protocol for opioid distribution is national in scope and application i.e. it applies to all citizens equally. The undertaking given by the physician to the respondent in terms of his own medical practice did not deviate from the general protocol. In other words, Ms. Fucile was not treated differently as a result of being treated by this particular physician during the time frame in question. Indeed, it is arguable that the general protocol is in place for the protection of Canadian citizens and as a means to ensure their collective good health.

12Further, I agree with the respondent’s submission and find that there was no “service” relationship between the applicant and the respondent College.

13It is not sufficient to make bald assertions to avoid a finding of no reasonable prospect of success. There must be some foundation upon which the Tribunal can find that the applicant was discriminated against linked to a prohibited ground under the Code.

14The Tribunal lacks the authority to provide remedies for unfair treatment generally and does not have the general power to decide whether the respondent treated the applicant fairly and appropriately. The incidental impact of a national policy or protocol is not a basis for alleging discrimination, particularly where it has general application to all citizens of Canada. Indeed, I find that the protocol is intended to safeguard and protect the health and well being of Canadians by providing guidelines for physicians in terms of prescribing and utilizing potentially dangerous and highly addictive substances. Although it is conceivable that individuals working for an entity such as the respondent may engage in discriminatory conduct or practices from time to time, the evidence in this case is utterly lacking in any particulars which establish a nexus with a proscribed ground of discrimination under the Code.

DECISION

15For all the foregoing reasons, I find that there is no reasonable prospect that the Application will succeed. In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated by the respondents.

16The Application is dismissed.