Marshall v. Durham Regional Police Service, 2011 HRTO 898

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charmaine Marshall

Applicant

-and-

Durham Regional Police Service and Glen Turpin

Respondents

-and-

Psychiatric Patient Advocate Office

Intervenor

A N D B E T W E E N:

Charmaine Marshall

Applicant

-and-

Lakeridge Health Corporation and Erik Paidra

Respondents

-and-

Psychiatric Patient Advocate Office

Intervenor

INTERIM DECISION

Adjudicator: Mark Hart

Date: May 9, 2011

Citation: 2011 HRTO 898

Indexed as: Marshall v. Durham Regional Police Service ____________________________________________________________________________

1These are two Applications dated June 26, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), filed against the Durham Regional Police Service and Glen Turpin (“police respondents”) and Lakeridge Health Corporation (“Lakeridge”) and Dr. Erik Paidra. The underlying complaints were both filed with the Ontario Human Rights Commission on June 16, 2007.

2The purpose of this Interim Decision is to address a request for intervenor status made by the Psychiatric Patient Advocate Office (“PPAO”). The applicant consents to intervention by the PPAO, while all respondents are opposed.

3In this proceeding, the applicant’s allegations include that she experienced discrimination because of perceived mental disability arising out of her apprehension by members of the respondent police service in July 2006, her consequent transfer to the respondent health centre, and the manner in which she was dealt with while there.

4The PPAO was established in May 1983 and provides independent advocacy and rights protection services to patients in tertiary care psychiatric hospitals. It also protects and promotes the rights and entitlements of Ontarians with mental illness by providing four core services: rights advice, individual advocacy, systemic advocacy, and public education and community engagement. The PPAO is an arm’s length program of the Ministry of Health and Long-Term Care, though it does not speak for the Ministry.

5The PPAO seeks intervenor status as a full party to assist the Tribunal in addressing the questions of discrimination and perceived mental health disability raised in these proceedings. The PPAO also specifically wishes to address how police apprehensions pursuant to the Mental Health Act, R.S.O. 1990, c. M.7, may be conducted in a discriminatory manner based on perceptions of disability related to mental illness, and further, that information provided by police may unduly and negatively influence the emergency intake and assessment process and medical staff, in turn perpetuating discriminatory barriers to the equitable access of medical services.

6The PPAO states that it intends to support the position of the applicant that her right to be free from discrimination on the basis of perceived mental health disability was violated by the respondent health service providers, and that this created a barrier to equitably accessing primary health care services. The PPAO also intends to support the position of the applicant that her right to be free from discrimination on the basis of perceived mental health disability was violated by the respondent police service.

7The PPAO proposes to call the evidence of its Program Manager for Advocacy at the hearing if granted intervenor status, and seeks full party status, which would entail the right to examine and cross-examine witnesses and make submissions.

8The respondent Lakeridge does not dispute that the PPAO has expertise in various issues related to mental health or that it has experience intervening in other proceedings. Indeed, the PPAO’s expertise in this area has been recognized and it has been granted intervenor status in two proceedings before this Tribunal, Braithwaite v. Ontario (Attorney General), 2005 HRTO 32 and S. and C. v. Toronto Police Services Board, 2009 HRTO 166, as well as in court proceedings and coroners’ inquests.

9However, Lakeridge opposes the PPAO’s request to intervene on two bases. First, it is stated that the PPAO has failed to provide the foundation that would support intervenor status being granted. Lakeridge states that the PPAO was required to set out the specific issue(s) upon which it proposed to intervene, but has failed to do so except in the most general manner without providing any detail or specificity as to what issues it actually seeks to address.

10I agree that the characterization of the issues upon which the PPAO seeks to intervene is quite broad. That, however, is not in my view a basis upon which to deny a request for intervenor status, if the proposed intervenor otherwise may be of assistance to the Tribunal in addressing the matters at issue in the proceeding and would not unduly delay the proceeding.

11Lakeridge also opposes the PPAO’s request on the basis that its intent is to advocate on the applicant’s behalf in this proceeding. This position is based upon the PPAO’s statement in the material filed with its request that it intends to support the applicant’s position that she experienced discrimination, which Lakeridge states has been put forward without consideration of the respondents’ position and evidence in this matter.

12In my view, while it states that it intends to support the applicant’s position in this proceeding, I do not view this as the PPAO necessarily becoming an “advocate” for the applicant or doing anything other than taking a position on the matters at issue, which is no different than many other intervenors. The PPAO, if granted intervenor status, would not be taking instructions from the applicant, and if its position on any particular issue deviated from a position put forward by her, it would be free to say so.

13Dr. Paidra objects to the intervention request on four bases. First, he takes issue with the PPAO’s reliance on matters that post-date the incidents at issue in this proceeding, which occurred in 2006. As previously indicated, the PPAO has been in existence since 1983 and so would have experience in the area of mental disabilities prior to and encompassing the time of the events at issue. While the PPAO has made reference to post-2006 matters in its materials, I see these references as being more in support of its expertise in the area as opposed to asserting that it intends to rely on evidence of post-incident matters to assert that a violation of the Code should be found.

14Second, Dr. Paidra objects on the basis that the issues raised by the applicant relate to her personal involvement with the respondents in July 2006, and there are no issues of general public interest raised in the application. Because no systemic issue has been raised, such as a hospital or police policy or guideline, Dr. Paidra asserts that there is no role for the PPAO as an intervenor. I disagree. It is correct that the issues before this Tribunal for determination relate to whether the applicant, as an individual, experienced discrimination, as opposed to an allegation that a particular hospital or police policy or guideline is in violation of the Code. However, there may be matters within the experience and expertise of the PPAO that may be of assistance to the Tribunal in assessing and analyzing the evidence in this proceeding in determining whether the applicant’s individual rights were violated, which in my view militate in favour of granting intervenor status.

15Third, Dr. Paidra objects on the basis that the PPAO misstated the facts in this matter, in particular in relation to an assertion that medical services were “withheld” from the applicant when Dr. Paidra states that this did not occur. In my view, this is a matter of fact and evidence for determination at the hearing and does not affect my determination of the intervention request.

16Fourth, Dr. Paidra objects on the basis that the PPAO really intends to provide expert evidence in this matter, without having filed an expert report to which the respondents would be able to respond. In my view, this objection goes more to the terms upon which intervenor status may be granted, as opposed to the question of whether such status should be granted at all.

17The two police respondents object generally on certain of the grounds raised by Lakeridge and Dr. Paidra, which already have been addressed above.

18In my view, the PPAO has recognized experience and expertise in the area of mental health issues, which may be of assistance to the Tribunal in this case. I also am concerned that the applicant is no longer represented by counsel in this proceeding, and am of the view that the Tribunal may be assisted by having PPAO counsel participate as a party intervenor in this proceeding. Accordingly, I hereby grant the PPAO status as an intervenor as a full party in this proceeding.

19All parties shall provide to the PPAO a copy of their respective Application or Response, any statement of additional facts, and any disclosure already made pursuant to the Rules. The parties also shall ensure that the PPAO receives a copy of the pre-hearing materials they are required to file by May 19, 2011.

20By no later than May 19, 2011, the PPAO is required to serve on all other parties and file with the Tribunal a full statement of all of the evidence it proposes to elicit in this proceeding from its Program Manager for Advocacy and any documents upon which it intends to rely at the hearing. If it is intended that its Program Manager for Advocacy will be providing expert or opinion evidence, this will be specifically set out in the statement, the basis for any proposed opinion will be provided, and a copy of this individual’s CV will be served and filed.