Donaven v. Wolseley Holdings Canada Inc., 2012 HRTO 1206

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Glenn Donaven Applicant

-and-

Wolseley Holdings Canada Inc. Respondent

DECISION

Adjudicator: Keith Brennenstuhl Date: June 19, 2012 Citation: 2012 HRTO 1206 Indexed as: Donaven v Wolseley Holdings Canada Inc.

APPEARANCES

Glenn Donaven, Applicant ) Self-represented Wolseley Holdings Canada Inc., Respondent ) Lara Stewart, Representative

1This is an Application 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 the area of goods, services and facilities on the basis of disability.

2By Case Assessment Direction ("CAD") dated March 21, 2012, the Tribunal directed that a summary hearing be held by teleconference. It stated as follows at paragraphs 5:

The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondent's actions and the grounds cited.

ANALYSIS

Summary Hearings

3The summary hearing process is outlined in Rule 19A of the Tribunal's Rules of Procedure. In a summary hearing the issue is whether an 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.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, 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.

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.

Application to the Facts

5The applicant is employed by the corporate respondent as an inside sales specialist. He alleges that on November 5, 2011 his chiropractor signed him out of work for approximately 3 weeks in an attempt to diagnose and correct a back problem that he had for over a year. According to the applicant, the respondent's short term disability carrier ("C & A") would not accept the forms signed by his chiropractor, but rather, insisted that the forms be signed by a physician. The applicant indicates that his family physician was familiar with his back problem and without hesitation countersigned the forms signed by the chiropractor charging him, however, $200.00 for the service. According to the applicant, he complained to the respondent about the need for a physician's signature, given that the forms had been signed by a chiropractor, but was told that the respondent would not get involved in C & A's policy of only accepting forms signed by a physician.

6The applicant concedes that ultimately he received the short term disability benefits to which he was entitled. Nevertheless, he asserts that he has the right to see the doctor of his choice, which in his case was a chiropractor and should not have been required to see a physician in order to obtain short term disability benefits. He writes, in his Application:

A chiropractor may not be a physician but they are a Doctor as defined in the Regulated Health Professionals Act 1991 and allowed to practice medicine as defined in the Chiropractic Act 1991. By discriminating against Chiropractors, Wolseley Canada and their benefit providers, are limiting my free access to see Chiropractors (or any other Regulated Health Professional) if I choose them for treatment of my disability, and they are therefore discriminating against me.

7I find that the Application has no reasonable prospect of success. The applicant does not provide a basis for a finding of discrimination because of a disability within the meaning of the Code. In my view, it is not inherently illegitimate or discriminatory for a benefit provider to confirm eligibility for benefits based on a physician's rather than a chiropractor's report.

8The applicant's argument in essence is that the "physician only rule" denies him free access to the health care provider of his choice, and that this is so egregious, it must be discriminatory". However, to demonstrate a violation of the Code, the applicant would have to show that the "physician only rule" is a disadvantage linked to a Code protected ground that is not imposed on others entitled to the same benefits. The applicant, though, has not shown or alleged differential treatment as compared with others entitled to the same benefits. According to the respondent, the requirement for a physician's report is an industry standard and I have no reason to doubt this. The applicant acknowledged that, indeed, all three of his benefit providers "follow the physician only rule".

9In this case, the applicant has not provided any basis that could support a finding of discrimination by the respondent. He disagrees with the requirement that he must provide a physician's report rather than a report from a health care provider of his choice to his benefit provider in order to access benefits, but there is no basis for concluding that this is discriminatory, and as such, there is no reasonable prospect that the Application will succeed.

10The Application is dismissed.