HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathleen Magda

Applicant

-and-

Grzegorz Jaroszynski

Respondent

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Brian Eyolfson

Date: December 2, 2011

Citation: 2011 HRTO 2163

Indexed as: Magda v. Jaroszynski

APPEARANCES BY

Kathleen Magda, Applicant ) John Nelson, Counsel

Grzegorz Jaroszynski, Respondent ) Carolyn Brandow, Counsel

INTRODUCTION

1This Application was filed on December 23, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondent, an orthopaedic surgeon, subjected her to discrimination on the basis of disability, in the provision of services, in relation to a consultation for knee replacement surgery on March 2, 2006. The underlying Complaint filed with the Ontario Human Rights Commission is dated August 16, 2006.

2In addition to chronic knee, hip and lower back pain, the applicant lives with HIV and Hepatitis C. She was referred to the respondent for an assessment by her family doctor, and traveled from Sudbury to Burlington, accompanied by a support person, B.R., to attend an appointment with the respondent. The respondent ultimately did not recommend surgery.

3The applicant alleges that, at the outset of her appointment, the respondent asked her about her HIV and Hepatitis C. She also alleges that he did not perform a physical examination, and he made several confusing and contradictory statements. At one point, he told her that a knee replacement would not work, and, at another point, that she was too young for knee replacement surgery. She also alleges that he told her that her condition was irreversible and that she would end up in a wheelchair. She alleges that the respondent’s actions were discriminatory, and that he failed to examine her because she has HIV and Hepatitis C.

4In addition to denying the allegations, the respondent requested that the Application be dismissed pursuant to section 45.1 of the Code, on the basis that the same facts had been dealt with in a proceeding before the College of Physicians and Surgeons of Ontario.

Procedural background

5In an earlier Case Resolution Conference Decision dated June 14, 2010, 2010 HRTO 1342, the Tribunal denied the respondent’s request that the Application be dismissed pursuant to section 45.1 of the Code, but proceeded to dismiss the Application on the merits.

6In a subsequent Reconsideration Decision dated November 3, 2010, 2010 HRTO 2194, the Tribunal granted the applicant’s Request for Reconsideration of the Tribunal’s earlier Case Resolution Conference Decision on the merits, and directed that a new hearing be scheduled.

7A new Case Resolution Conference hearing was held in Sudbury on May 16, 2011, with the respondent and his counsel attending by videoconference. This Decision arises out of that hearing.

THE PARTIES’ POSITIONS

8Prior to the hearing, in correspondence dated April 14, 2011, the applicant advised the Tribunal and the respondent that she would not be pursuing the part of her Application that alleges that the denial of services, in not providing knee replacement surgery, was discriminatory. The applicant indicated that she would be pursuing the part of her Application which alleges that the way she was treated during her appointment with the respondent amounted to discrimination under the Code, based on disability. This was re-stated by the applicant at the outset of the hearing.

9In response, the respondent indicated that he would nevertheless be referring to medical evidence to put the appointment between the applicant and the respondent in context. The respondent submitted that the applicant was not faced with any burden or disadvantage because of a prohibited ground under the Code.

EVIDENCE

The applicant

10The applicant testified that she is HIV positive and has Hepatitis C. She also testified that she was experiencing a lot of pain at times and could not get up and walk. She explained that her knee was “giving out” and she got a walker. She also had pain in her lower leg, hip and back.

11With respect to her appointment with the respondent on March 2, 2006, regarding possible knee replacement surgery, the applicant explained that she traveled approximately five hours from Sudbury to Toronto, and then to Burlington, by bus. She was accompanied by B.R. She explained that if she did not understand what the respondent said, B.R. could explain.

12The applicant testified that when she arrived at the respondent’s office with B.R. she was told to go and get x-rays across from his office, in the same building. She testified that B.R. was baffled because everything should have been there and she felt the respondent should have already had her x-rays.

13The applicant testified that she then went into the respondent’s office and he questioned her about her HIV and Hepatitis C. She excused herself to get B.R. and B.R. came in. She then asked the respondent why, when she was there for a consultation, was he drilling her on HIV and Hepatitis C, and he did not even have x-rays.

14The applicant testified that she was with the respondent for less than a minute and a half before she went to get B.R., and that, during that time, the respondent did not touch her or examine her. She testified that he felt it would not work. She testified that the respondent stopped asking her about her HIV status when B.R. came in. She did not understand being asked about her HIV status because he was not operating and he had no x-rays or papers on her. On the other hand, she testified that he would have had her “counts.” In cross-examination, she confirmed that she was surprised that the respondent asked her about HIV, and testified that she thought he would have had the information. She queried why it was the first thing the respondent asked about.

15The applicant testified that, after B.R. came in, the respondent said he did not feel the operation would work. She could not understand that and said, “what do you mean you go by your feelings that it’s not going to work.” She testified that she asked if it was because she had a distorted femur and it has gone into her back, and he said it is irreversible and she was going to end up in a wheelchair. The applicant added that she turned around and the respondent “said something about young or something.” She testified that she was crying at the time. She also testified that she felt terrible, asked why, and she “heard about too young or something,” and they were dismissed. In cross-examination, the applicant testified that it was a “terrible thing to go that far when you think you are getting a knee replacement and to be told that.”

16The applicant was asked about her beliefs about her own life expectancy. She testified that “you don’t know” and that you see people okay one day and gone the next.

17In cross-examination, the applicant confirmed that she was 51 years old when she saw the respondent, and it was the first time they met. Her doctor in Sudbury told her that he would send her medical information to the respondent. She confirmed that when she saw the respondent, she was expecting to get a knee replacement. She also confirmed that, before seeing the respondent, she had seen an orthopaedic surgeon in Sudbury about a knee replacement, and surgery was not offered. Instead, he ordered a brace for the applicant. She confirmed that a second doctor then assessed her for a knee replacement, and she testified that he said that he would not touch it.

Statement of B.R.

18The applicant provided a statement signed by B.R., who was deceased at the time of the hearing. There were no objections to entering the statement into evidence; however, the respondent submitted, and I agree, that the Tribunal should not place too much weight on the statement, as B.R. could not be cross-examined, and the statement appears to be signed on December 3, 2006, approximately nine months after the events in question. I note that it is also not clear how the typed statement was prepared, and by whom. It states, in part, as follows:

When we first arrived at the doctor’s office Ms. Magda was asked for her x-rays. She had not been told to bring them and had assumed that her family doctor, Dr. Davidson, had forwarded them to Dr. Jaroszynski. She was told that she had to go to the x-ray clinic and bring back the x-rays. Ms. Magda did this and returned with the x-rays.

Ms. Magda then went into Dr. Jaroszynski’s office. Approximately 2 minutes later she suddenly came out of the doctor’s office and asked me to come in with her. She was clearly shaken and crying. Ms. Magda asked the doctor to repeat what he had said to her. He said “how are you getting along with your HIV and Hepatitis C”.

Dr. Jaroszynski did not touch Ms. Magda at any time while I was in his office and performed no physical examination of any kind.

At one point Dr. Jaroszynski told Ms. Magda that she was too young to have a knee replacement operation but he provided no explanation of why that would be so.

At another point Dr. Jaroszynski told Ms. Magda that her condition was irreversible and she better get used to the idea of using a wheel chair. This was extremely distressing for Ms. Magda and she was upset and crying when she left the doctor’s office.

Ms. Magda told me that she was upset because the doctor’s first question was about her HIV and Hepatitis C when she was seeing the doctor about her knee. She felt discriminated against because of her HIV status because the doctor wouldn’t touch her. She was also upset that the doctor would refuse to help her and then tell her that she would end up in a wheel chair. The idea that she would inevitably be confined to a wheel chair was particularly upsetting for Ms. Magda and the way Dr. Jaroszynski had been quite nonchalant about it, as if it was not big deal, made it that much worse.

The respondent

19The respondent provided the Tribunal with a graph and a page of numbers representing, with respect to the total knee replacements in his practice, the distribution of knee replacements by age. The ages range between 37 and 92. It appears that the respondent conducted knee replacement surgeries on 2 people in their 30s, 18 people in their 40s, 173 people in their 50s, 378 people in their 60s, 406 people in their 70s, 133 people in their 80s, and 3 people in their 90s. With respect to patients in their 50s, 52 surgeries were conducted on patients aged 50 to 54, and 121 were conducted on patients aged 55 to 59. The respondent testified that the ideal age for knee replacement surgery is 65 or older.

20The respondent explained that the indication for knee replacement surgery is severe pain due to arthritis, and that it is imperative to determine if the operation has a reasonable likelihood of improving the patient’s function, and decreasing pain. He explained that an artificial knee will not even closely match the function of a normal healthy knee, and that a well-functioning artificial knee will match the average function of a 70 year old knee. He testified that the younger people are, the less happy they are with their artificial knees.

21The respondent was asked about risks associated with total knee replacements. He testified that he worries the most about infection because it is a devastating risk. If it happens, people need many operations. There is no way to remove the infection without removing everything, and there may be a need to go in and re-clean the knee a few times. Sometimes the leg has to be amputated.

22With respect to the applicant’s referral to him, the respondent explained that in 2005 hospitals were given additional funding to open more operating rooms to more people. They were given the opportunity to shorten their waiting lists for knee and hip replacements. The respondent was given more operating time, so he sought out patients. The applicant’s doctor had previously referred patients to him, so his staff informed the applicant’s doctor that if there were any candidates for knee replacement, he could do that within several weeks.

23The respondent testified that he saw that the applicant had been seen by other orthopaedic surgeons, but, in his experience, some surgeons do not want to take on a case where there is mild arthritis, especially in younger people. He decided to book the consultation, despite the applicant’s younger age. He also testified that he gave the applicant’s doctor the date for the operation, so he anticipated doing the operation, but needed to discus the operation in person. He explained that he could not book an operation without seeing and examining the patient, and discussing the pros and cons of the operation. He testified, with that in mind, the applicant was brought into the office to complete an examination.

24The respondent testified that he reviewed a referral request dated February 10, 2006, from the applicant’s doctor, which states that the applicant has right knee osteoarthritis and is HIV and Hepatitis C positive. He confirmed that he was aware of her HIV status prior to her appointment with him.

25The referral request attached a medical report from another orthopaedic surgeon dated October 6, 2005, which stated that the applicant was told that there was nothing that really could be done for her right knee. The respondent testified that he had previously seen patients deemed not candidates for knee replacement, and in view of his additional training and experience, he thought maybe he could help the applicant. A fax from the respondent’s office dated February 27, 2006, regarding the applicant, states that “there is a good chance that a date for surgery… will be set up for mid March/06.” The respondent reiterated that he was prepared to do the operation prior to seeing the applicant, but he did not receive any films or x-rays prior to March 2, 2006.

26The respondent testified that he had a very vague recollection of the appointment. With respect to standard or routine processes for knee replacement consultations, he testified that he first takes the patient’s history, does a physical exam, reviews imaging and other medical tests, and then an opinion is given to the patient.

27The respondent explained that his handwritten notes dated March 2, 2006 regarding the applicant first indicate, among other things, that she had an injury and a fractured femur, and then that he asked her about Hepatitis C and HIV. The notes then state “in remission” and he explained that this has a bearing on her immune system. He testified that he did not recall the specific order, but given what is “on top” in his notes, he would have asked about her condition first, and only then asked questions about HIV, such as whether it is in remission or not, because it has a bearing. He confirmed that he has operated on people with HIV.

28In cross-examination, the respondent confirmed that the applicant said that she was in remission. He explained that, assuming surgery was otherwise indicated, if the applicant had an active HIV infection, he would not have proceeded with surgery at that point. He explained that he trusts that the referring physician knows the patient and has judged the person eligible for surgery. He referred to his due diligence, and testified that, while he trusts that a physician would not send him someone with an active condition, he cannot assume that.

29He also explained that, after a patient leaves the room, he makes a dictation and goes into more detail. He referred to a letter from him to the applicant’s doctor, dated March 2, 2006, which states in part, as follows:

Examination shows that she walks with a cane. There is no effusion in the right knee. There is a scar laterally from the surgical fixation of the distal femur fracture. Range of motion is well preserved. There is some crepitus and tenderness.

X-ray shows that there is evidence of previous distal femoral fracture which has healed. There are several small areas of calcification over the medial joint line, but otherwise no significant amounts of arthritis.

I do not believe that Kathleen would be a good candidate for a knee replacement in view of the fact she is quite young and also the arthritis she has in her knee is minimal. I explained that to her. In my opinion, treatment at this stage for her should be non surgical.

The respondent testified that it is not possible to say there is no “effusion”, or fluid, in the knee, a scar, and crepitus, without examining the leg and range of motion. With respect to crepitus, he explained that he puts his hand on the knee while the knee is being moved. He explained that this was the physical examination part. He also explained that he viewed the applicant’s x-ray in his office by entering an ID number into his computer, and displaying the image on his computer screen.

30The respondent testified that, to his surprise and disappointment, having seen the applicant in person, examined her, and reviewed x-rays, he did not find a condition for which knee replacement would be useful. He testified that the x-ray showed the cartilage on the surface of the joint was preserved, and confirmed no sign of arthritis. He testified that the surfaces were not worn out to the degree that would be helped, or for which knee replacement would be indicated. He explained that he was wrong, and that he assumed the other surgeon may have been wrong, but the other surgeon was also right. He testified that it was disappointing to him.

31The respondent was asked about the life expectancy of a person with HIV in 2006, and testified that he did not keep up to date on that, but it was common knowledge that it was chronic, but not the killer it used to be; however he expected life expectancy would be less than that for a woman without HIV. He also testified that the management of HIV has evolved tremendously to being a chronic disabling condition, and not the death sentence it used to be. He explained that it is not possible, nor is there a need, to keep up on the latest developments in an area that is not his. He referred to a team approach, and explained that in preparation for knee replacements, he sends patients for consultations with an anaesthetist and an internal medicine specialist, to make sure the general medical condition is good enough to safely conduct the operation.

32In explaining assessing whether patients are candidates for knee replacement surgery, the respondent testified that there are several issues, including the “magical age of 65.” He explained that there is an issue of matching the function of an artificial knee with the expectations of what a normal knee feels like, and that the lifestyle expectations of a 50 year old are different than that of an older person. He testified that an artificial knee can match the expectations of a 70 year old, but cannot give a 50 year old person a knee that feels like a 50 year old person’s knee; it feels like a 70 year old person’s knee.

33The respondent explained further that age is neither an indication, nor a contra-indication; it is a factor. He testified that the longevity of the component is “about 15 years give or take”, and that re-doing a failed knee replacement is more difficult than the first time.

34When asked about the applicant saying that he said she was “too young”, the respondent testified that he could not recall the specific words, but that he would have discussed the whole issue of the age at which knee replacements are done. He also testified, however, that he is not of the opinion that there is such a thing as too young, or that age would contra-indicate for the right conditions.

35In cross-examination, the respondent confirmed that he discusses with patients the two issues of the longevity of the component and the function given their lifestyle pursuits and activities. He was asked if the life expectancy of the patient is less than the life expectancy of the component, whether the life expectancy of the component is an issue. He explained that 15 years is a common expected average, but that does not mean, for a particular individual, that is how long the component will last. He testified that they can expect several years of good function. He testified that age is only one of many things that he has to look at in making a recommendation, and that, in some ways, it is a personal decision with some patients. He agreed that if a person said they have HIV and they are probably not going to live more than 10 or 15 years, and do not golf or run marathons, and want to go shopping at the mall and go for walks, then knee replacement might be perfectly good for them. He agreed that he did not have expert knowledge about HIV and life expectancy.

ANALYSIS AND DECISION

36There is no dispute that the applicant has a disability within the meaning of the Code.

37In final submissions, the applicant submitted that she was subjected to direct discrimination during the consultation, when the respondent did not touch her at any time throughout the entire appointment, as the only reason could be her HIV status.

38The applicant testified, as alleged in her original Complaint dated August 16, 2006, that the respondent did not touch her or examine her during the appointment. She also testified that the respondent questioned her about her HIV and Hepatitis C, and advised her that he felt a knee replacement would not work. She did not testify that anything else was said, or happened, when she initially met alone with the respondent, which she testified was for less than a minute and a half.

39In his statement, B.R. indicated that the applicant was in the respondent’s office for approximately two minutes before she asked him to join her. His statement also indicates that the respondent did not touch the applicant at any time, or perform a physical examination of any kind, while he was in the respondent’s office.

40In his response to the applicant’s original Complaint, which the respondent states was sent November 23, 2006, the respondent states that he performed an examination on the applicant which included inspection of the knee, as well as palpation and assessment of the range of motion. At the hearing, the respondent referred to his contemporaneous letter to the applicant’s family doctor dated March 2, 2006, which describes a scar, and states that there is no effusion in the right knee, there is some crepitus and tenderness, and the range of motion is well preserved. I have no reason to doubt the respondent’s evidence that it is not possible to say, as he did in his letter to the applicant’s family doctor, that there is no effusion in the knee, a scar, and crepitus, without examining the leg and range of motion. With respect to crepitus, he also explained, and I have no reason to doubt, that he puts his hand on the knee while the knee is being moved. In my view, the respondent’s evidence regarding his physical examination of the applicant is consistent with both his evidence that a physical exam is a standard or routine process during a knee replacement consultation, and the content of his letter to the applicant’s family doctor dictated the same day as the appointment.

41While it is not entirely clear to me what might be involved in a standard physical examination during a consultation for knee replacement surgery, or what would have been appropriate in the applicant’s case, I find that it is more likely than not that the respondent did conduct a physical examination of the applicant, which involved touching her knee, prior to B.R. entering the respondent’s office. I also note that B.R.’s statement indicates that the applicant was clearly shaken and crying when she came out of the respondent’s office to get him, and that she was upset and crying when she left the respondent’s office. The applicant also testified that she was crying at the end of the appointment. It is possible that in light of her upset state, she did not recall a physical examination which may have been rather brief. In the circumstances, I do not find that the applicant has established on a balance of probabilities that the respondent subjected the applicant to discrimination under the Code with respect to any physical examination or lack thereof.

42The applicant clarified that she was not pursuing that part of her Application that alleged that the denial of the surgery was discriminatory. Rather, she was pursuing that part of her Application that alleged that the way she was treated during her appointment with the respondent was discriminatory. In so doing, the applicant argued that her life expectancy is reduced, but that was not taken into account by the respondent, and he treated her the same as any patient who was not HIV positive and would expect a full life expectancy, resulting in adverse affect or “indirect” discrimination. In final submissions, however, the applicant also submitted that she was subjected to “indirect” discrimination on the basis of disability in that part of the reason why she did not get a knee replacement was because of her age.

43The applicant alleges in her Complaint that, at one point, the respondent told her that she was too young for knee replacement surgery; however, her evidence with respect to this allegation was less than clear. The applicant testified that she turned around and the respondent “said something about young or something.” She repeated that she “heard about too young or something.” She also testified that she was crying at the time. In any event, the respondent does not deny referring to the applicant’s age.

44In his March 2, 2006 letter, the respondent states that he does not believe that the applicant would be a good candidate for a knee replacement in view of the fact she is quite young and also the arthritis she has in her knee is minimal, and he states that he explained that to her. When asked about saying that the applicant was “too young”, the respondent testified that he could not recall the specific words, but that he would have discussed the whole issue of the age at which knee replacements are done. I also note that, in his response to the Complaint, the respondent states, in part, as follows:

Dr. Jaroszynski explained to Ms. Magda both that a knee replacement was not indicated for her as she did not have significant arthritis, but rather she only had mild patellofemoral joint crepitus. Dr. Jaroszynski was aware that Ms. Magda was disappointed as she had hoped that he would perform a knee replacement as she likely believed that it would be a solution to her pain problem. In Dr. Jaroszynski’s experience, many patients do not understand the disadvantages of joint replacements as they are very hopeful that a joint replacement will solve their problem. To assist her to understand and accept the result of the assessment and because he thought she might not understand the disadvantages of knee replacement, Dr. Jaroszynski also explained to Ms. Magda why the decision of whether to proceed with a knee replacement for individuals in her age group is more difficult than for individuals over the age of 60. For younger individuals, such as Ms. Magda, the failure of the artificial joint within fifteen to twenty years and the failure of artificial joints to allow for a range of activities and activity level acceptable to someone in her age group have to be carefully considered.

45In the circumstances, I find that it is more likely than not that the respondent did refer to the applicant’s relatively young age in the context of discussing why she was not a good candidate for knee replacement surgery.

46As noted above, the applicant was clear during the case resolution conference hearing that she was not pursuing the allegation that the denial of services, in terms of not receiving knee surgery, was discriminatory on the basis of disability; however, she also submitted that she was subjected to “indirect” discrimination on the basis of disability, in that part of the reason she did not get a knee replacement was because of her age, and her reduced life expectancy in relation to her disability was not taken into account by the respondent. In my view, the applicant’s position seems to be, to some degree, at odds in that she is not arguing that the denial of surgery was discriminatory, at the same time that she appears to be arguing, on the theory of adverse affect discrimination, that her disability was a factor in her not receiving surgery, resulting in discrimination. In any event, I note that the respondent testified that, having seen and examined the applicant, and reviewed her x-rays, he did not find a condition for which knee replacement would be useful. I have no reason to doubt the respondent’s evidence in this regard, which was consistent with his documentary evidence. Accordingly, the respondent appears to have arrived at the conclusion that knee replacement surgery was not indicated, irrespective of the applicant’s age. In the circumstances, whether applying a direct or adverse affect discrimination analysis, I do not find that disability was a factor in the applicant not receiving knee replacement surgery.

47I have also considered whether or not the respondent subjected the applicant to adverse affect or “indirect” discrimination, as alleged, in terms of treating her the same as other patients with a “normal” life expectancy, or stating that the applicant was too young to receive a knee replacement, despite her shortened life expectancy. The difficulty I have with the applicant’s position is that, as asserted by the respondent, there is no evidence before me concerning the applicant’s life expectancy. While the parties provided the Tribunal with some articles related to HIV and life expectancy, there was no expert evidence before me concerning HIV and life expectancy in general, nor was their any medical evidence before me with respect to the applicant and her particular life expectancy.

48In the circumstances, there is no basis for me to determine that any discussion the respondent had with the applicant related to her age, including telling her that she was too young for knee replacement surgery, amounted to discrimination contrary to the Code, and I do not find that it did. On the evidence before me such discussions appear to be a standard or routine part of a knee replacement consultation, and there is no evidence before me to suggest that the respondent should have conducted that discussion any differently in all of the circumstances.

49It is not clear to me, based on the applicant’s submissions at the hearing, if she is maintaining that any other aspects of the appointment with the respondent were discriminatory. Assuming that the applicant is maintaining that other aspects of the appointment are discriminatory they are addressed below.

50While the respondent asked the applicant about Hepatitis C and HIV, I do not find that this was discriminatory as it has a bearing on whether or not to proceed with surgery, if surgery was indicated. I have no reason to doubt the respondent’s evidence that if the applicant had an active HIV infection, he would not have proceeded with surgery at that point, and that, while he trusts that a referring physician would not send him someone with an active condition, he cannot assume that. The respondent explained that it has a bearing on the applicant’s immune system, and, as he explained in his response to the Complaint, immunosuppressed patients are not candidates for implantation because of the risk of infection. He also testified that infection is a devastating risk.

51With respect to the allegation that the respondent told the applicant that her condition was irreversible and that she would end up in a wheelchair, she testified that the respondent stated this in response to her question relating to her femur and back. The respondent could not recall if he used the term “irreversible”, but testified that it is possible he used the term to refer to age-related degenerative changes that cannot be reversed. He did not recall saying anything about a wheelchair, as alleged by the applicant, and testified that he does not know a reason why he would have. He explained that it would be an exception for someone to end up using a wheelchair because of arthritis, and that people manage to get around despite advanced arthritis. In his response to the Complaint, the respondent denied stating that the applicant would end up in a wheelchair.

52The statement of B.R. indicates that the respondent told the applicant that her condition was irreversible, and she better get used to the idea of using a wheelchair; however, I am cautious not to ascribe too much weight to this statement for the reasons stated above. I also note, as the applicant recognizes in her Complaint, that the alleged statement by the respondent that the applicant would end up in a wheelchair is completely at odds with his medical report stating that her arthritis is mild. In the circumstances, while the respondent may have used the term “irreversible” in relation to the applicant’s degenerative changes, I do not find on a balance of probabilities that he told her that she would end up in a wheelchair.

53In conclusion, I do not find that the respondent subjected the applicant to discrimination on the basis of disability, contrary to the Code, in relation to a consultation for knee replacement surgery on March 2, 2006. I also note that it is clear from the evidence that the respondent was aware of the applicant’s HIV and Hepatitis C status prior to confirming the appointment with her, and I accept the respondent’s evidence that he was prepared to conduct the operation prior to meeting with the applicant, examining her, and reviewing her x-rays.

54The Application is dismissed.

Dated at Toronto, this 2nd day of December, 2011.

”signed by”__________

Brian Eyolfson

Vice-chair