Christianson v. The Estate of Michael Lai, 2011 HRTO 207

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Christianson

Applicant

-and-

The Estate of Michael Lai

Respondent

DECISION

Adjudicator: Brian Cook

Date: January 28, 2011

Citation: 2011 HRTO 207

Indexed as: Christianson v. Lai

APPEARANCES

Michael Christianson, Applicant ) Self-represented

The Estate of Michael Lai, Respondent ) Naomi Loewith, Counsel

1This is an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed on November 13, 2008, and alleges discrimination in services on the ground of disability, and reprisal.

2Michael Lai was the applicant’s family doctor from 1976 to 2007. Dr. Lai passed away in October 2009. The applicant advised the Tribunal that he wished to pursue the Application against the Estate of Dr. Lai.

3Debbie Sanko was Dr. Lai’s nurse of for 23 years. Counsel for the respondent proposed that Ms. Sanko provide a sworn affidavit concerning the circumstances surrounding the decision to terminate the doctor-patient relationship with Mr. Christianson. Counsel advised that Ms. Sanko could be available to testify at a hearing if necessary. The applicant did not object to this proposal.

4In a Case Assessment Direction dated August 17, 2010, I directed as follows:

I have determined that the most fair and expeditious way to proceed is as follows:

• Ms. Loewith will file with the Tribunal and the applicant a sworn affidavit from Ms. Sanko concerning the circumstances surrounding the decision to terminate the doctor-patient relationship with Mr. Christianson.

• The Tribunal will schedule a one-hour telephone conference hearing. At this hearing, the applicant will have an opportunity to provide evidence and make submissions to establish that there is a factual basis to his allegations that might show that his Code-protected rights were infringed by the respondent.

• After hearing the applicant’s evidence and submissions, I will determine if further evidence or submissions are necessary in order to decide the issues raised in the Application. If further evidence or submissions are required, an additional hearing process will be established. The respondent will not be required to present any evidence at the telephone conference hearing but may rely on the affidavit from Ms. Sanko.

5The telephone conference call took place on January 24, 2011. The applicant and Ms. Loewith participated.

6Prior to the conference call, the applicant sent an email to the Tribunal objecting to Ms. Sanko’s affidavit. I have found that it is not necessary to deal with this issue because I have reached the findings set out below without reference to, or reliance on, the affidavit.

Background

7The applicant alleges that Dr. Lai discriminated against him on the basis of disability or perceived disability and that he was also subjected to reprisal.

8The applicant explained that he suffered a brain injury many years ago. While the applicant admits he has been diagnosed with schizophrenia, he disputes this diagnosis. In his view, any problems that he may have, which might cause others to believe are due to schizophrenia, are in fact due to the brain injury.

9This dispute about diagnosis lies at the root of a large proportion of the numerous legal proceedings that the applicant has initiated, including several Applications to this Tribunal.

10The applicant explained that his problems with Dr. Lai started after the applicant discovered that his medical records included reports from other doctors that diagnosed him with schizophrenia. The applicant initiated or attempted to initiate legal proceedings against some of these other doctors. He asked Dr. Lai to provide a report stating that he had never noticed any symptoms of mental illness in the course of his treatment of the applicant. The applicant believes that this is true, based on his review of the contents of Dr. Lai’s clinical notes. According to the applicant, Dr. Lai refused to provide this report, which in turn, he claims, compromised other legal proceedings.

11The applicant filed a complaint with the College of Physicians and Surgeons (the “College”) against Dr. Lai and other doctors. The complaint against Dr. Lai concerned Dr. Lai’s medical investigations and treatment. The Complaints Committee of the College reviewed the complaint and decided to take no further action. This led to further proceedings, including an Application to this Tribunal against the College, which was dismissed pursuant to section 45.1 of the Code in Christianson v. College of Physicians and Surgeons of Ontario, 2010 HRTO 72.

12On November 16, 2007, after the applicant filed the complaint with the College and before the College Complaints Committee issued its decision, Dr. Lai wrote to the applicant. Dr. Lai indicated that it appeared that the doctor-patient relationship had broken down because the applicant appeared to have lost faith in him as a doctor. Dr. Lai terminated the doctor-patient relationship on that basis.

13The applicant alleges that the termination of the doctor-patient relationship was due to discrimination on the basis of disability and also that it was a reprisal for the complaint to the College.

Conclusions

14As stated in the August 17, 2010 Case Assessment Direction, the issue before me is whether the applicant has established a factual basis to his allegations that might show that his Code-protected rights were infringed by Dr. Lai.

15On the basis of the documents filed by the applicant and the information provided during the conference call hearing, I find that the applicant has not established that there is a factual basis to his allegations that might show that his Code-protected rights were infringed by the respondent.

16The applicant suggests that Dr. Lai was improperly influenced by the medical reports of other doctors, including two psychiatrists, who incorrectly diagnosed schizophrenia. Even if this were true, the diagnosis of schizophrenia was made no later than 1991. Dr. Lai continued to treat the applicant until 2007. The applicant has provided no explanation for why the alleged discrimination by Dr. Lai arose only after the applicant filed a complaint with the College.

17The respondent, in contrast, has provided a complete, coherent and convincing non-discriminatory explanation for the decision by Dr. Lai to end the doctor-patient relationship. In my view, Dr. Lai’s conclusion that the applicant had lost faith in his medical care of the applicant was a very reasonable conclusion based on the applicant’s complaint to the College which alleged that Dr. Lai had not properly medically investigated or treated him.

18I conclude that there is no evidence to suggest that the November 16, 2007 letter from Dr. Lai was in any way influenced by the applicant’s disability or perceived disability. In my view, it is clear that the decision was taken because of an obvious breakdown in the doctor patient relationship as evidenced by the complaint to the College.

19I conclude that there is no factual basis to the applicant’s allegation that Dr. Lai discriminated against him on the ground of disability.

20The applicant also alleges reprisal. Section 8 of the Code provides as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

21A successful allegation of reprisal must involve negative consequences to an applicant because of his or her attempt to seek protection for perceived human rights violations or participation in a human rights matter. Further, intention on the part of a respondent must be proven for a successful claim of reprisal: see Noble v. York University, 2010 HRTO 878 at para. 31.

22The applicant alleges that the decision to terminate the doctor-patient relationship was, in whole or in part, a reprisal for his complaint to the College. The applicant concedes that the complaint to the College was not related to any claim that the applicant’s Code-protected rights had been infringed by Dr. Lai and also had nothing to do with any proceeding under the Code or a refusal to infringe the Code-protected rights of any other person.

23Accordingly, I find that the applicant has failed to establish that there is any factual basis to his allegations that he was reprised against contrary to s. 8 of the Code.

Decision

24The Application against the Estate of Dr. Lai is dismissed.