HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.D.

Applicant

-and-

Grand River Hospital

Respondent

A N D B E T W E E N:

S.D.

Applicant

-and-

Grand River Hospital, Cathy Beebe and Pauline Potzold

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: December 5, 2011

Citation: 2011 HRTO 2165

Indexed as: S.D. v. Grand River Hospital

APPEARANCES

S.D., Applicant ) Self-represented

Grand River Hospital, Cathy Beebe and ) Michele Warner, Counsel

Pauline Potzold, Respondents )

INTRODUCTION

[1] The purpose of this Decision is to decide whether the Applications should be dismissed on the basis that there is no reasonable prospect that they will succeed.

BACKGROUND

[2] Between October 2001 and January 2002, the applicant, who has a mental disability, was an outpatient of Hazelglen Outreach Mental Health Service (“Hazelglen”), which is a psychiatry service of Grand River Hospital (“Grand River”).

[3] On December 29, 2008, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that Grand River discriminated against her with respect to services because of her disability.

[4] Specifically, she alleged that she discovered that a nurse who was providing outreach mental health services to her had made discriminatory entries in her patient chart. She further alleged that the entries disclosed that the nurse had treated her in a discriminatory manner.

[5] On August 6, 2010, the Tribunal dismissed the Application. See S.D. v. Grand River Hospital, [2010 HRTO 1653](https://www.minicounsel.ca/hrto/2010/1653). In its Decision, the Tribunal also ordered that the applicant’s patient chart be sealed, and that the applicant’s name be anonymized in order to protect the integrity of the sealing order. On September 21, 2010, the Tribunal dismissed the applicant’s Request for Reconsideration of the Decision. See S.D. v. Grand River Hospital, [2010 HRTO 1911](https://www.minicounsel.ca/hrto/2010/1911).

[7] With respect to the applicant’s allegation of discrimination, she stated that she recently discovered that when she was an outpatient of Hazelglen between October 2001 and January 2002, Ms. Beebe, Ms. Potzold, and a doctor administered clonazepam to her, despite the fact that it is a controlled substance which was not needed to treat her condition and had serious side effects. She stated that the respondents discriminated against her on the basis of disability because they abused her body with a controlled substance, and discriminated against her on the basis of creed because taking a controlled substance was contrary to her system of beliefs.

[8] With respect to the applicant’s allegation of reprisal, she stated that in a separate legal proceeding Grand River’s legal counsel breached the Tribunal’s anonymization order by identifying her as the applicant in S.D. v. Grand River Hospital, 2010 HRTO 1653.

[9] On May 3 and 30, 2011, the Tribunal issued Case Assessment Directions (“CADs”), which directed that a summary hearing be held by teleconference to determine whether the Applications should be dismissed on that basis that there is no reasonable prospect that they will succeed. The CADs also directed the parties to deliver to each other and file with the Tribunal any documents or cases that they intended to rely upon no later than 14 days prior to the hearing.

[10] On August 8, 2011, the Tribunal issued a Notice of Summary Hearing to the parties which informed them that the hearing was scheduled for October 18, 2011. Both parties filed written submissions and some supporting documents prior to the hearing.

[11] The summary hearing took place by conference call as scheduled. I heard oral submissions from both parties and reserved my Decision. The following is my Decision.

DECISION

[12] Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

[13] Furthermore, in Dabic v. Windsor Police Service, [2010 HRTO 1994](https://www.minicounsel.ca/hrto/2010/1994), the Tribunal made the following comments at paras. 8-10:

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.

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 a 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.

[14] In her submissions, the applicant stated that the respondents discriminated against her because they illegally administered a controlled substance to her, which had serious side effects. Specifically, she stated that they administered clonazepam to her for “sedation” for 12 weeks, which was medically improper because “sedation” is not a listed use of clonazepam, and clonazepam is not supposed to be used for longer than nine weeks. She stated that administering a drug for an improper purpose is contrary to the federal Controlled Drugs and Substances Act, S.C. 1996, c. 19. She also stated that after taking clonazepam her jaw started to jerk, and her shoulders and hands started shaking.

[15] I asked the applicant to explain how her allegations relate to discrimination as opposed to medical malpractice, and she responded that she had no capacity to ask questions about clonazepam or to refuse to take it because she had a mental disability and was very ill at the time. She stated that the respondents were acting from a position of power and took advantage of her.

[17] In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated. With respect to her allegation of discrimination based on creed, the term “creed” is not defined within the Code, but human rights jurisprudence has construed “creed” to mean the same as “religion”. See, for example, Huang v. 1233065 Ontario, [2011 HRTO 825](https://www.minicounsel.ca/hrto/2011/825), Henry v. Kuntz, [2004 HRTO 7](https://www.minicounsel.ca/hrto/2004/7), Gohm v. Domtar Inc. (No. 4) (1990), [1990 CanLII 12500 (ON HRT)](https://www.minicounsel.ca/hrto/1990/12500), 12 C.H.R.R. D/161 (Ont. Bd. Inq.), and Ontario Human Rights Commission v. Simpsons-Sears, [1985 CanLII 18 (SCC)](https://www.minicounsel.ca/scc/1985/18), [1985] 2 S.C.R. 536. The applicant did not allege that the respondents’ administering of clonazepam to her was contrary to her religious beliefs.

[18] With respect to the applicant’s allegation of discrimination based on disability, her disagreement with the respondents’ medical decision to administer clonazepam to her does not, in the absence of some additional indicator of discrimination, constitute an allegation of discrimination, even if the decision was wrong. See Wilson v. Dixie Road Medical Association, [2011 HRTO 1607](https://www.minicounsel.ca/hrto/2011/1607), TenBruggencate v. Elgin (County), [2010 HRTO 1467](https://www.minicounsel.ca/hrto/2010/1467), and Egan v. Dr. Kennedy, Dr. O’Kane and St. Paul’s Hospital, [2006 BCHRT 15](https://www.canlii.org/en/bc/bchrt/doc/2006/2006bchrt15/2006bchrt15.html). The sole indicator of discrimination that the applicant brought forward was a bare allegation that the respondents took advantage of her because she was mentally ill. In short, she did not demonstrate that there is a reasonable prospect that evidence she has or that is reasonably available to her can show a link between the respondents’ alleged action and her disability.

[19] With respect to the applicant’s allegation of reprisal, in Noble v. York University, [2010 HRTO 878](https://www.minicounsel.ca/hrto/2010/878), the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

[21] In her submissions, the respondents’ counsel made a supplementary request that the Tribunal declare the applicant a vexatious litigant and prohibit her from filing further Applications without leave of the Tribunal for the following reasons:

(a) The applicant has commenced litigation over essentially the same issues in a multitude of different forums, and she launches appeals and/or applications for judicial review of each unfavourable decision.

(b) Grand River has been required to respond to more than eight proceedings commenced by the applicant.

(c) The applicant repeatedly corresponds with legal counsel and directly with Grand River and its nurses in a manner that is abusive, inappropriate, and disrespectful, including referring to them as monsters, criminals, and sexual abusers.

(d) Over time, her allegations have become more elaborate and extravagant, expanding to additional respondents and across a multitude of forums.

(e) At least some of the proceedings are commenced for an improper purpose, namely to protest against and harass the respondents in relation to her continued perception of their wrongdoing and despite these allegations being determined to be unfounded.

[22] In my view, declaring the applicant a vexatious litigant and prohibiting her from filing further Applications without leave of the Tribunal is an extraordinary step, which is not justified in the circumstances. I appreciate the respondents’ concerns, but I am also cognizant of the fact that the applicant is a person with a mental disability, who, I have no doubt, genuinely believes that she was mistreated and discriminated against when she was under psychiatric care. That said, the door is not closed with respect to this issue, and the Tribunal directs the applicant to be judicious if she is contemplating filing any further Applications against the respondents. The Tribunal also directs the applicant to ensure that she complies with Rule 1.12.1 of the Tribunal’s Rules of Procedure, which provides:

All materials filed with the Tribunal must be courteous and respectful of the Tribunal and other participants.

ORDER

[23] The Applications are dismissed.

Dated at Toronto, this 5^th day of December, 2011.

”signed by”________________

Ken Bhattacharjee

Vice-chair

S.D. v. Grand River Hospital, 2011 HRTO 2165

Case Summary

INTRODUCTION

[1] The purpose of this Decision is to decide whether the Applications should be dismissed on the basis that there is no reasonable prospect that they will succeed.

BACKGROUND

[2] Between October 2001 and January 2002, the applicant, who has a mental disability, was an outpatient of Hazelglen Outreach Mental Health Service (“Hazelglen”), which is a psychiatry service of Grand River Hospital (“Grand River”).

[3] On December 29, 2008, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that Grand River discriminated against her with respect to services because of her disability.

[4] Specifically, she alleged that she discovered that a nurse who was providing outreach mental health services to her had made discriminatory entries in her patient chart. She further alleged that the entries disclosed that the nurse had treated her in a discriminatory manner.

[8] With respect to the applicant’s allegation of reprisal, she stated that in a separate legal proceeding Grand River’s legal counsel breached the Tribunal’s anonymization order by identifying her as the applicant in S.D. v. Grand River Hospital, 2010 HRTO 1653.

[10] On August 8, 2011, the Tribunal issued a Notice of Summary Hearing to the parties which informed them that the hearing was scheduled for October 18, 2011. Both parties filed written submissions and some supporting documents prior to the hearing.

[11] The summary hearing took place by conference call as scheduled. I heard oral submissions from both parties and reserved my Decision. The following is my Decision.

DECISION

[12] Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

[13] Furthermore, in Dabic v. Windsor Police Service, [2010 HRTO 1994](https://www.minicounsel.ca/hrto/2010/1994), the Tribunal made the following comments at paras. 8-10:

[19] With respect to the applicant’s allegation of reprisal, in Noble v. York University, [2010 HRTO 878](https://www.minicounsel.ca/hrto/2010/878), the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established:

[21] In her submissions, the respondents’ counsel made a supplementary request that the Tribunal declare the applicant a vexatious litigant and prohibit her from filing further Applications without leave of the Tribunal for the following reasons:

(a) The applicant has commenced litigation over essentially the same issues in a multitude of different forums, and she launches appeals and/or applications for judicial review of each unfavourable decision.

(b) Grand River has been required to respond to more than eight proceedings commenced by the applicant.

(c) The applicant repeatedly corresponds with legal counsel and directly with Grand River and its nurses in a manner that is abusive, inappropriate, and disrespectful, including referring to them as monsters, criminals, and sexual abusers.

(d) Over time, her allegations have become more elaborate and extravagant, expanding to additional respondents and across a multitude of forums.

(e) At least some of the proceedings are commenced for an improper purpose, namely to protest against and harass the respondents in relation to her continued perception of their wrongdoing and despite these allegations being determined to be unfounded.

All materials filed with the Tribunal must be courteous and respectful of the Tribunal and other participants.

ORDER

[23] The Applications are dismissed.