Andres v. De La Torre, 2012 HRTO 1843

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eudelyn Prudente Andres

Applicant

-and-

Josephine De La Torre

Respondent

DECISION

Adjudicator: Alan G. Smith Date: October 1, 2012 Citation: 2012 HRTO 1843 Indexed as: Andres v. De La Torre

APPEARANCES

Eudelyn Prudente Andres, Applicant Amer Mushtaq, Counsel

Josephine De La Torre, Respondent Dara M. Lambe, Counsel

BACKGROUND

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 on the basis of place of origin and disability in services, specifically medical services.

2The matter was heard on its merits before me on May 10, 2012. Both parties attended with counsel and participated in the hearing.

AMENDMENT OF ALLEGED GROUNDS OF DISCRIMINATION

3At the start of the hearing the applicant advised that she wished to amend her Application to reflect that she had suffered discrimination because of her place of origin (i.e., the Philippines) and not on the basis of disability. The respondent had no objection to the amendment and the hearing proceeded on that basis.

THE EVIDENCE

Applicant

4The applicant testified that she suffers from chronic pain and more specifically fibromyalgia. The respondent is a physician in private practice specializing in family medicine. The applicant became a patient of the respondent in March 2009.

5The applicant stated that in December 2009 or January 2010, during a consultation with the respondent, the respondent told the applicant that “I am puzzled by your illness…being a Filipino fibromyalgia does not exist…maybe it’s just in your head”. The applicant expressed her view that the respondent delayed in referring the applicant to a specialist rheumatologist because the respondent believed that persons of Filipino background never contract the disease.

6The applicant further testified that in January 2010, she had difficulty getting the respondent to complete long term disability (“LTD”) insurance application forms to the applicant’s satisfaction. The respondent also refused to certify that the applicant was sufficiently disabled to qualify for a disabled parking permit with the Ministry of Transportation.

7The doctor-patient relationship came to an end in February 2010. The applicant says that this was done at the instance of the respondent.

Respondent

8The respondent testified that she practiced as a medical doctor in the Philippines for over 13 years before immigrating to Canada in 2002. Since starting her current practice in 2008 approximately 25 – 30% patients of her patients have been of Filipino background. She also stated that, based on her experience with those patients, she did advise the applicant that, “fibromyalgia is not very common in the Filipino community”. However, the respondent denied saying that, “fibromyalgia was non-existent in the Filipino community”, or that she told the applicant that, “maybe it’s just in your head”.

9The respondent agreed that the applicant had expressed dissatisfaction with the way the respondent had completed the LTD forms. She also agreed that she had denied the applicant’s request to certify that the applicant qualified for a disabled parking permit.

10The respondent asserted that it was the applicant who had initiated the termination of the doctor-patient relationship. The respondent’s office administrator, Marianne Wingrove, also testified that it was the applicant who had asked to be removed as the respondent’s patient so as to be able to access another physician.

11The respondent testified that her treatment methodology, as noted in the applicant’s medical chart, did not differ from any other patient suffering from chronic pain. In cross-examination the respondent denied treating those patients of Filipino background any differently than those with other places of origin.

ANALYSIS

12The Tribunal does not have the general power to inquire into claims of unfairness or wrongdoing outside the areas or grounds prescribed in the Code. See Cooper v. Pinkofskys, 2008 HRTO 390, Fulton-Bell v. Kawartha-Haliburton Children's Aid Society, 2009 HRTO 1769 and Grant v. Tierney, 2011 HRTO 1207. The Tribunal's jurisdiction is limited to dealing with disputes that properly fall under the Code.

13Section 1 of the Code reads:

Services - Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

14In a claim of discrimination that is not made under s. 11 of the Code, the applicant must establish with evidence that she was treated differently from others because of a personal characteristic (in this case place of origin) protected by the Code. See, Mangal v. Molson Toronto Brewery, 2011 HRTO 575 and Hatvani v. Ontario (Community and Social Services) 2011 HRTO 820.

15The parties disagree factually on two key points: what the respondent said to the applicant in the consultation of June 2009 or December 2009 or January 2010 and who severed the doctor/patient relationship. Using the established criteria regarding credibility, I must therefore determine which of the two competing versions is in greater harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions. I also keep in mind that a witness may testify to what she sincerely believes to be true, but she may be quite honestly mistaken. See Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) applied by the Tribunal in Warren v. Turtle Island Recycling, 2010 HRTO 829 and Arias v. Centre for Spanish Speaking Peoples, 2010 HRTO 1818, among others.

16Having considered all of the evidence, including testimony and the Application and Response, I find that the respondent’s version of the conversation which took place during the consultation is the more plausible and more credible. The respondent testified regarding her lengthy professional experience with the Filipino community, and her conclusion that fibromyalgia was relatively rare, but not completely unknown, within that ethnic group. Her testimony on this point was consistent with her version of what she conveyed to the applicant in consultation. At paragraph 28 of Schedule “A” to her written Response (Form 2), the respondent indicated:

Dr. De La Torre also advised Ms. Andres that Rheumatic Disease (which includes Fibromyalgia) is less common in Filipino women than in others, in her own experience as a physician who trained and worked in the Philippines.

The version of this conversation in her written Response was both specific and entirely consistent with her testimony in oral evidence. I also note that the Respondent testified that the conversation took place in June 2009, and entered into evidence a patient chart which identifies a patient consultation date consistent with the Respondent’s recollection and testimony with respect to when the discussion took place.

17In contrast the applicant’s version of the consultation was vaguer and shifted between her written Application and oral testimony. In her Application (Form 1, page 7) the Applicant alleged the respondent told her that this illness was “very unusual” amongst “Asians”, while in testimony she alleged that the respondent told her “being a Filipino fibromyalgia does not exist…maybe it’s just in your head”. Additionally, the Applicant was less certain when the discussion occurred, testifying she thought it occurred either in December 2009 or January 2010. In my view, particularly having regard to the information in the patient’s chart, the discussion occurred in June 2009.

18For the reasons above, I accept the respondent’s version of the discussion which took place in consultation and in my view it cannot support a finding of discrimination under the Code. The respondent was simply expressing a general diagnostic observation and I find that it does not amount to direct discrimination or give rise to any inference that the applicant may have been or was treated differently than any other patient because of her ethnic background.

19I also accept that it was the applicant who initiated the termination of the doctor-patient relationship. It is clear from the applicant’s testimony that she felt extremely dissatisfied with the service she was receiving from the respondent. The respondent’s assertion that it was the applicant who broke things off is consistent with the nature of the entire relationship between the parties and is also corroborated by Ms. Wingrove’s testimony. I accept it as credible.

20The applicant’s other allegations i.e., that the respondent delayed making a referral to a rheumatologist, that the respondent refused to authorize a disabled parking permit and that the respondent did not complete LTD forms as desired by the applicant, can be considered together. The applicant claims discrimination based on her place of origin but presented no evidence that demonstrated she was treated any differently by the respondent compared to patients of other backgrounds. Simply put, the applicant failed to draw any distinction between the quality of medical services she received from the respondent compared to any of the respondent’s patients whose background is not Filipino. There was no evidence before me (either direct, or from which I am able to draw any inference) that the applicant was treated in a disadvantageous manner by the respondent, that service was withheld, or that access to medical services was limited in comparison to someone from another ethnic background. In terms of the timing of the specialist referral, the refusal to authorize the parking permit and the dispute regarding the LTD forms, I therefore find that the applicant has not provided any evidence which makes out a claim of discrimination pursuant to the Code.

ORDER

21The Application is dismissed.