HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mark Fisher on behalf of Michelle Cleroux
Applicant
- and-
Tom Sheidow
Respondent
decision
Adjudicator: Brian Cook
Date: December 30, 2011
Citation: 2011 HRTO 2332
Indexed as: Fisher v. Sheidow
APPEARANCES / wRITTEN SUBMISSIONS
Mark Fisher on behalf of Michelle Cleroux, ) Applicant ) Self-represented
Tom Sheidow, Respondent ) Dara Lambe, Counsel
Introduction
1This is an Application filed 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. The Application was brought by Mark Fisher on behalf of Michelle Cleroux.
2The Tribunal directed that a summary hearing be held in a Case Assessment Direction dated July 5, 2011. A summary hearing was held on December 21, 2011. Mr. Fisher and Ms. Lambe participated. There were no other participants.
Background
3Tom Sheidow, the respondent in this Application, is an ophthalmologist. Michelle Cleroux was treated by Dr. Sheidow in June and July 2010. Ms. Cleroux receives benefits from the Ontario Disability Support Program (“ODSP”). Mr. Fisher is a friend and roommate of Ms. Cleroux. Ms. Cleroux lives in Kitchener and Dr. Sheidow practices in London. ODSP may cover transportation costs for medical treatments and has a form that must be completed by a health care practitioner. In most circumstances, the form must be filed in advance of the medical treatment date. The Form is called a Mandatory Special Necessities Benefit Request (the “Benefit Request Form”).
4Ms. Cleroux experienced a sudden change in her vision in June 2010. She saw her family doctor and an ophthalmologist in Kitchener and was referred to Dr. Sheidow for an emergency assessment on June 14, 2010. A Benefit Request Form was not required on that occasion because the assessment was on an emergency basis. ODSP covered the taxi fare costs in respect of the June 14, 2010 assessment.
5There was a follow-up visit on June 21, 2010 and a Benefit Request Form was also not required for this visit and ODSP covered the taxi fare costs for this visit.
6Ms. Cleroux brought a Benefit Request Form with her at the time of the June 21, 2010 visit, in preparation for the next visit. Dr. Seidow or his office staff provided some information on the form.
7The next day, Mr. Fisher took the form to the ODSP office to obtain pre-authorization for the next scheduled treatment date, which was scheduled for July 8, 2010. The ODSP official who reviewed the form said that it had not been fully completed. Mr. Fisher spoke to a supervisor who said he would take care of the situation and call Dr. Sheidow’s office. This was apparently done as the taxi company was authorized to take Ms. Cleroux to and from Dr. Sheidow’s office for the July 8, 2010 visit.
8Ms. Cleroux brought another Benefit Request Form with her on July 8, 2010. It was completed in a way that was similar to the way the earlier form had been completed. Mr. Fisher took that form to the ODSP office. He was again told that it had not been properly filled in but that the ODSP officials would deal with the problem which they did as Ms. Cleroux again had no difficulty getting to the July 14, 2010 treatment by taxi. That visit was for surgery and Ms. Cleroux had no further contact with Dr. Sheidow.
9The Benefit Request Form is a three page form that deals with different scenarios. The first section deals with patients who need Medical Transportation, which was the relevant section in this case. The next section deals with Diabetic Supplies, which is not relevant. The next section, which comprises the bulk of the form, deals with Surgical Supplies and Dressings, which is not relevant either.
10The last part of the form asks questions about the patient’s medical condition and also requires the health care provider to sign and date the form. Dr. Sheidow failed to fill in this last part of the Form on either of the two Benefit Request Forms he completed.
11According to Ms. Lambe, who is Dr. Sheidow’s counsel, Dr. Sheidow has completed many Benefit Request Forms and his usual practice is to fill in only the relevant section of the Form, and this has not caused difficulties in other cases. She suggested that Dr. Sheidow’s interpretation of the Form is that a signature is only required for the third part of the Form, dealing with Surgical Supplies and Dressings.
12Mr. Fisher submits that Dr. Sheidow purposely did not complete all the required information on the Forms because he did not think that Ms. Cleroux required transportation by taxi. He took the position that this was discriminatory.
13He also alleges that Dr. Sheidow’s office staff were rude when the problems with the Form were identified and in subsequent discussions. The Application also makes allegations about medical care that was provided and about whether sufficient records were obtained before decisions about surgery were made. The respondent submits that these allegations are not correct and that Ms. Cleroux was appropriately treated and that past records were not required as the necessary information was provided in the referral.
Analysis
14In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:
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.
15In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:
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.
16Even if Mr. Fisher is correct that Dr. Sheidow purposely did not complete all the required information on the Forms because he did not think that Ms. Cleroux required transportation by taxi, it is not clear how this would be evidence of discrimination on the basis of disability. It further appears that Dr. Sheidow must have subsequently provided the necessary confirming information directly to ODSP as on both occasions when the Form was not fully completed, ODSP pre-authorized the taxi fares. As a consequence, it appears that Ms. Cleroux did not suffer any financial damages.
17Based on the information in the Application and filed subsequently, and the information provided in the summary hearing, I find that there is no reasonable prospect that Mr. Fisher could show that the fact that the Benefit Request Form was not fully completed resulted from discrimination on the basis of disability.
18Even if true, the allegations that the office staff were rude would also not cause the Tribunal to find discrimination on the basis of disability. The discussions that were allegedly rude had to do with how the Form was completed and where. The applicant did not establish how the alleged rudeness was connected or relevant to Ms. Cleroux’s disability.
19This Tribunal does not have jurisdiction to deal with general allegations of unfairness. Further, the Tribunal does not have the general power to decide whether medical treatment was appropriately provided, and, in my view, there is no reasonable prospect that Mr. Fisher could prove that any of the allegations in this regard, if true, had anything to do with Ms. Cleroux’s disability.
20For all of these reasons, I find that there is no reasonable prospect that the Application will succeed and it is dismissed on that basis.
Dated at Toronto, this 30th day of December, 2011.
”signed by”____________
Brian Cook
Vice-chair