HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jemila Macanovic
Applicant
-and-
Mount Sinai Board of Directors, Marylin Kanee, Molyn Leszcz,
Sian Rawkins and Mary Jane Dykeman
Respondents
DECISION
Adjudicator: Leslie Reaume
Indexed as: Macanovic v. Mount Sinai Board of Directors
APPEARANCES
Jemila Macanovic, Applicant ) Self-represented
Mount Sinai Board of Directors, Marylin )
Kanee, Molyn Leszcz, Sian Rawkins ) Marie MacDonald, Counsel
and Mary Jane Dykeman, Respondents )
INTRODUCTION
1Jemila Macanovic (the "applicant"), self-identifies in her Application as a person with mental health problems. Ms. Macanovic alleges discrimination in the provision of medical services by the respondents, as well as reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The allegations do not relate to treatment but rather arise from Ms. Macanovic's request for assistance in completing the medical portion of her Ontario Disability Support Program ("ODSP") application. She alleges that she experienced discrimination during the process of completing her ODSP application and that her complaints to various individuals at Mount Sinai Hospital ("Mount Sinai") were not taken seriously because of her disability.
2The respondents deny the allegations of discrimination and reprisal. The individual respondents are staff at Mount Sinai: Dr. Molyn Leszcz is the Psychiatrist-in-Chief; Dr. Sian Rawkins is Head of the Ambulatory Psychiatry Program; Mary Jane Dykeman acted as Legal Counsel and Corporate Privacy Officer and Marylin Kanee is the Director of the Diversity & Human Rights office ("DHR"). The role of the DHR, as described by the respondents, is to advise, problem solve, mediate, investigate and provide education relating to all human rights and diversity issues within the Mount Sinai community.
3The respondents were represented by counsel. The applicant was self-represented. The applicant indicated throughout the hearing the points at which she required clarification, assistance or time to consider a decision she was required to make. The applicant received breaks when she required them and was provided with assistance whenever she was uncertain about any aspect of the hearing process. The applicant was also permitted to testify to events which were not directly relevant to her allegations but which she considered part of the overall context for understanding her interactions with staff at Mount Sinai. At no time did the applicant indicate that she was having difficulties or that she required an adjournment of the proceeding.
4The Tribunal issued a Case Assessment Direction ("CAD") dated July 8, 2011, containing the following directions:
On consent of the respondents, the Application is amended as requested by the applicant.
The Request for Summary Hearing is denied.
Within 14 days of the date of this Case Assessment Direction, the parties shall deliver to each other copies of all arguably relevant documents.
The hearing remains scheduled for November 1 and 2, 2011.
As the parties' versions of the facts and issues have been well set out in the Application and Response, pursuant to Rule 5.2, neither party need file witness statements as required by Rule 17.2.
No later than 45 days prior to the hearing, the parties must deliver to each other and file with the Tribunal a list of witnesses and all documents they intend to rely upon at the hearing, pursuant to Rules 16.2, 16.3 and 17.1.
The hearing dates scheduled for November 1 and 2, 2011 shall be used for the evidence and cross-examination of the applicant. The respondents need not have their witnesses present nor prepared to give evidence on those two dates.
The respondents may renew their request that the Application be dismissed on the basis that it has no reasonable prospect of success and/or because of delay following the evidence of the applicant. The parties shall be prepared to make argument on this request during the hearing dates scheduled.
5The applicant concluded her testimony and cross-examination on the first day of hearing. The respondents sought to have this Application dismissed at the conclusion of the applicant's testimony on the basis that there was no reasonable prospect that the Application would succeed. I indicated that while I was prepared to hear the respondent's request, my preference would be to hear the evidence of Ms. Kanee, the person responsible for dealing with allegations of discrimination at Mount Sinai and with whom the applicant interacted personally. At the conclusion of the applicant's evidence it was possible to determine that there was no reasonable prospect that the Application would succeed against Dr. Rawkins and Dr. Leszcz. The reasons for those decisions are set out in more detail below. However, the applicant's testimony had raised questions about the process by which her complaints were investigated which, in my view, required an explanation before a request to dismiss could be considered.
6The respondent elected to call Ms. Kanee and the applicant consented to proceed with both her examination-in-chief and cross-examination. Pursuant to the CAD of July 8, 2011, the parties had exchanged disclosure but were not required to prepare witness statements. Nevertheless, the applicant agreed to proceed to hear the evidence of Ms. Kanee and she was given time to prepare the questions she wished to ask on cross-examination.
7To assist the applicant, the parties had engaged with the Tribunal in a process of reviewing the applicant's evidence in order to ensure that there were no misunderstandings about what the applicant had testified to. The applicant requested, and the respondents agreed, that the same exercise be undertaken with respect to Ms. Kanee's evidence. I then explained the nature of the respondent's request to dismiss and the issues that the parties would be required to address. The parties requested and were given the opportunity for both written and oral submissions in relation to the issues addressed by this Decision.
8The oral submissions were conducted on February 2, 2012. By the time of the oral submissions the applicant indicated that she was seeking to have me recused. The applicant was provided with an opportunity to make oral submissions in relation to that issue as well as the respondent's request to dismiss for no reasonable prospect of success.
Recusal
9The applicant requested that I recuse myself for breaches of procedural fairness. The applicant argued that she was disadvantaged by the CAD of July 8, 2011 which was issued by the Associate Chair, and specifically the fact that the parties were not required to file witness statements. The direction to proceed without the necessity of witness statements was based on the fact that the materials filed by the parties provided full particulars of both the allegations and the defence. In addition, the applicant agreed to hear the testimony of Ms. Kanee without a witness statement and she did not indicate before, during or after the testimony of Ms. Kanee that she was taken by surprise or in any way disadvantaged by the process.
10The applicant also alleges that I was frustrated with her, raised my voice several times at her, that I yelled at her in a frightening way, and advised counsel for the respondent that she was "sensitive". These events did not occur. Counsel for the respondent also has no recollection of these events ever taking place. At one point in the hearing, the applicant indicated that she hoped that I was not frustrated with her, which was inexplicable at the time. Nevertheless, I carefully explained to the applicant that she was doing a very good job advocating for herself and that she should try not to make assumptions about what I might be thinking as I was listening to her.
11I can see no basis in the applicant's submissions for any breach of procedural fairness or recusal and as a result, the request is denied.
Request to Dismiss
12As a result of the cooperation of the parties it was possible to determine a significant number of facts which are not in dispute. Where the facts are in dispute I have referred to them as allegations.
13The applicant contacted Dr. Leszcz in approximately May 2008 for assistance in completing the medical portion of her ODSP application. She had been treated in the past by two of Dr. Leszcz's residents when she experienced mental health problems. Dr. Leszcz assigned the task to Dr. Rawkins, who was to undertake a two-day assessment of Ms. Macanovic.
14Ms. Macanovic had two appointments with Dr. Rawkins. She was advised in advance that it would be necessary to have a social worker present for the purpose of assisting in the completion of the ODSP form. At the first meeting Ms. Macanovic found the social worker intrusive. Ms. Macanovic alleged that the social worker let out an audible "gasp" during their meeting and that at one point interjected with "she did not lie" as Ms. Macanovic was recounting an experience with a person who had not been truthful with her. Ms. Macanovic also testified that it was her belief that the social worker was not adding anything to the process and that it was her observation that Dr. Rawkins was perfectly capable of conducting the assessment herself.
15Immediately after the first meeting Ms. Macanovic called Dr. Rawkins to advise her that she was not comfortable meeting a second time if the social worker was present. She testified that Dr. Rawkins disagreed with her point of view on both the social worker's behaviour during the meeting and the necessity for her attendance at the second meeting.
16Ms. Macanovic testified that the social worker attended the second meeting. She also testified that the meeting took place without incident, that the ODSP form was completed and filed and that she ultimately secured her benefits.
17Despite describing Dr. Rawkins as sensitive and competent during the assessment process, Ms. Macanovic alleges that Dr. Rawkins' failure to take her concerns seriously and remove the social worker from the second meeting was discriminatory. Ms. Macanovic alleges that Dr. Rawkins was not truthful with her about the role of the social worker and suspects that she was in attendance because of concerns about safety and other assumptions about Ms. Macanovic as a person with mental health problems. She testified that "it had occurred to me that the worker was there for other reasons than to help Dr. Rawkins with completing the ODSP form."
18Ms. Macanovic testified that she was deeply upset by the incident with Dr. Rawkins; however, she did not take any action to address those concerns between the second meeting in May 2008 and September 2008. She testified that there were serious issues in her life which she was struggling with but that the issues from the May assessment had been festering.
19The applicant alleges that in September 2008 she filed a human rights complaint with Ms. Kanee, the person in charge of the human rights office at Mount Sinai. Ms. Kanee testified after the applicant about her recollection of the applicant's interactions with herself and her staff.
20Ms. Macanovic also decided to meet with Dr. Leszcz, not for the purpose of requesting treatment but for the purpose of airing her concerns about the presence of the social worker during the May 2008 assessment. That meeting took place on November 12, 2008. Ms. Macanovic testified that Dr. Leszcz disagreed with her opinion that the social worker should not have been present and did not take her concerns seriously and that he made a point of advising her that he was aware that she had spoken to the staff at the human rights centre. Ms. Macanovic testified that Dr. Leszcz told her that he thought she should pursue her complaint, but Ms. Macanovic believed that his tone of voice and demeanour suggested that he was upset that she had filed a human rights complaint and was actually trying to intimidate her by mentioning it. The applicant also alleged that Dr. Leszcz commented to her that he "was not in the spirit to help" her. Ms. Macanovic ended the meeting by informing Dr. Leszcz that she would be discussing his comments with the human rights office and filing a complaint with the Ontario College of Physicians and Surgeons. Ms. Macanovic alleges that this action on the part of Dr. Leszcz constitutes a reprisal under the Code.
21After leaving Dr. Leszcz, Ms. Macanovic did a number of things that day. She called the office of Marylin Kanee and in her own words, "demanded" to see her. After several calls during which she insisted on meeting with Ms. Kanee that day to ensure that her recollection of the meeting with Dr. Leszcz was fresh in her mind, Ms. Macanovic was given an appointment at 4:30 p.m.
22While she waited for her appointment time, Ms. Macanovic went to the office of the CEO and met with an assistant in that office with whom she was familiar. She also attempted to meet with a patient advocate who was unavailable. Ms. Macanovic left her contact information, but alleged during her testimony that the patient advocate did not subsequently get in touch with her.
23Ms. Macanovic then met with Ms. Kanee, who advised her that there was nothing that she could do in relation to her complaints about Dr. Rawkins and Dr. Leszcz. The applicant alleged that Ms. Kanee advised her that Dr. Leszcz was not accountable to her office because he was a doctor. Ms. Kanee denied this allegation and testified that in fact, doctors are subject to the same human rights policies as all other staff.
24Ms. Macanovic described herself as appalled and upset but denied the allegation made by Ms. Kanee that she was yelling and screaming during the meeting. She was also very upset that Ms. Kanee had disclosed her complaint to Dr. Leszcz without her permission. Ms. Kanee testified that she had spoken with Dr. Leszcz in an effort to understand Ms. Macanovic's allegations against Dr. Rawkins which Ms. Macanovic had raised with Ms. Kanee's office in September 2008.
25Ms. Macanovic advised Ms. Kanee that she intended to file a complaint against her with the privacy office. She described Ms. Kanee as becoming upset and asking her to leave the office. Ms. Kanee confirmed in her testimony that she asked Ms. Macanovic to leave her office and alleged that her reason for doing so was that Ms. Macanovic was yelling at her. Ms. Kanee also testified that this was the first time she had ever asked anyone to leave her office. Ms. Macanovic alleges that Ms. Kanee's failure to investigate both her earlier complaint about Dr. Rawkins and her complaint about Dr. Leszcz was discriminatory.
26Ms. Macanovic left Ms. Kanee's office and attempted to see Ms. Dykeman. Ms. Dykeman could not see Ms. Macanovic at the moment and as a result, Ms. Macanovic left her email address with Ms. Dykeman's assistant.
27Ms. Macanovic alleged that Ms. Dykeman did not contact her and she assumes that Ms. Dykeman passed her email on to a security officer at Mount Sinai named Mark Cormack. Mr. Cormack sent an email to Ms. Macanovic dated November 14, 2008 following her meeting with Ms. Kanee. The text of his email reads as follows:
Good afternoon Jemila,
My name is Mark McCormick and I am the Manager of Security at Mount Sinai Hospital. I have received reports of numerous unannounced visits made by you this week to various departments in the hospital, as well as repeated telephone calls across the organization. I must insist that you stop these calls and visits immediately as you are being very disruptive and intrusive. If you have any urgent medical needs, you should seek the appropriate care, either by calling 911 or visiting your local emergency department.
I trust this notice will be sufficient to have these behaviours stop immediately, otherwise, I will be forced to issue you a Trespass Notice and ban you from entering or contacting our facility. As we do not wish to see you get into trouble, I hope you make the right choice and stop harassing us.
28Ms. Macanovic testified that she interpreted this as a "ban" from Mount Sinai and that it was issued because of stereotypical perceptions about her as a person with mental health problems.
29Ms. Kanee testified to the interactions she and her staff had with Ms. Macanovic in relation to the allegations against Dr. Rawkins. Ms. Macanovic initially contacted Ms. Kanee's office using the name "Kate" in early September 2008 and initially would not identify herself. Ms. Kanee testified that despite her best efforts she was unable to get the details she required to conduct an investigation of Ms. Macanovic's allegations against Dr. Rawkins. Ms. Macanovic also called Ms. Kanee's office at various times in September complaining about allegations of mistreatment which are not the subject of the Application before me. Ms. Kanee also testified, and Ms. Macanovic agreed, that Ms. Macanovic had given her staff a number of mixed messages about whether she wanted to pursue her allegations or not. Ms. Macanovic explained this by saying that she was frustrated with Ms. Kanee's staff; however, it is apparent from the records of phone calls with Ms. Macanovic that it was difficult to understand precisely what action she wanted Ms. Kanee's office to take.
30Ms. Kanee did speak with Dr. Leszcz and did determine that the allegations against Dr. Rawkins did not appear to be sufficient to support an allegation of discrimination, which she conveyed to Ms. Macanovic when they met in person. Ms. Kanee testified that it was at this point that Ms. Macanovic became extremely angry, began yelling at her and was asked to leave her office.
31Having reviewed the materials filed by the parties, heard the evidence of the applicant and Ms. Kanee on behalf of the respondents, I conclude that there is no reasonable prospect that Ms. Macanovic can prove discrimination or reprisal within the meaning of the Code. Accordingly, the Application must be dismissed. What follows are my reasons for this Decision.
Applicable Legal Principles
32Although this analysis arises from the request by the respondent that this Application be dismissed as having no reasonable prospect of success, I considered it appropriate in this case to set out the basic principles which lead to a finding of discrimination under the Code.
33It is well established that human rights legislation is to be given a broad, liberal and purposive interpretation. In addition to the specific provisions related to discrimination, the Code contains a preamble which reflects the kinds of experiences the legislation is directed at remedying. It speaks not just to equality in relation to the law, but also to the values of understanding, mutual respect and dignity and the necessity to ensure that every citizen has the opportunity to contribute fully to the community. The analysis of a claim of discrimination under the Code must be animated by these important principles.
34The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, confirmed that the "balance of probabilities" standard of proof applies to all civil cases, and, in order to satisfy this standard, evidence must be "sufficiently clear, convincing and cogent".
35There is no dispute that the respondents were providing a service to the applicant within the meaning of the Code.
36In Shaw v. Phipps, 2012 ONCA 155, the Court of Appeal re-stated the long-standing principle from the decision of the Supreme Court of Canada in Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, that the onus rests on the complainant to establish a "prima facie" case of discrimination which is described as "one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of answer from the respondent."
37Discrimination is not defined in the Code; however, it has been consistently defined by the Tribunal and the Courts to mean adverse treatment, or a distinction which creates a disadvantage, on the basis of a prohibited ground (Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.), [1989] 1 S.C.R. 143).
38In this case, the applicant satisfies the first part of her burden because she self-identifies with the prohibited ground of disability, which the respondents do not dispute.
39In order to satisfy the second part of her burden, the applicant must establish proof of adverse treatment. The respondents dispute that the applicant's allegations support a finding of adverse treatment and as a result, this issue will have to be determined.
40If the applicant is able to demonstrate adverse treatment, she must also be able to demonstrate that there is some nexus between the adverse treatment and the prohibited grounds alleged. The applicant must be able to prove that her disability was a factor in bringing about the treatment she experienced.
41If the applicant meets this burden, the respondent then has the onus of demonstrating, on the balance of probabilities, a credible, non-discriminatory justification for its actions. If the respondent is unable or unwilling to establish such a justification, or the applicant proves that the justification is pre-textual, the Tribunal will find a breach of the Code and order an appropriate remedy.
42The applicant has also alleged a breach of the Code by Dr. Leszcz on the basis of Section 8 of the Code, which provides protection against reprisal or threat of reprisal when a person attempts to claim and enforce his or her rights under the Code:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
43The burden is on the applicant to point to sufficient evidence from which the Tribunal can draw the inference that it is more likely than not that there was an intentional act of reprisal against the applicant for attempting to claim or enforce her or his rights under the Code. It is not necessary for the applicant to have filed an application under the Code nor is there a requirement that the Tribunal find that the respondent did in fact violate the applicant's right to be free from discrimination (Noble v. York University, 2010 HRTO 878).
44I have not found it necessary to consider issues of credibility. The evidence which was not disputed was sufficient to support my findings.
45At the conclusion of the evidence of Ms. Macanovic and Ms. Kanee, the respondents argued that the Application had no reasonable prospect of success, engaging the Tribunal's decision in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777. The applicant indicated her understanding of the principles set out in that decision. The question in this case is whether, at this stage in the hearing, the Application should be dismissed because there is no reasonable prospect of the applicant succeeding in proving the elements required for a finding of discrimination.
46In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal observed that in some cases, the focus of a summary hearing into whether an application has a reasonable prospect of success will be on the legal analysis and whether the allegations could reasonably be considered to amount to a Code violation. In other cases, the focus will be on the applicant's ability to point to evidence which is reasonably available which would demonstrate a link between the actions of the respondent and the prohibited grounds alleged by the applicant. The Tribunal also emphasized the importance of being attentive to the fact that in some cases of alleged discrimination, the respondent may be in possession of most or all of the evidence related to the applicant's allegations and it may be appropriate to give the applicant the opportunity to acquire that evidence through disclosure and cross-examination of the respondent's witnesses.
47As the Tribunal noted in Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389, at para. 17, the Tribunal does not have the power to deal with general allegations of unfairness and that there must be a basis for the allegations beyond mere speculation.
48With respect to Dr. Rawkins, Ms. Macanovic is unable to point to evidence which would be reasonably available to her to support her suspicion that Dr. Rawkins insisted on the attendance of a social worker at her meetings with Ms. Macanovic because of stereotypical assumptions about Ms. Macanovic's mental health problems. Whatever Ms. Macanovic thinks about the utility of having a social worker present, that decision was Dr. Rawkins' to make, and there is no evidence it was made on the basis of discriminatory considerations. Accordingly, the allegations against Dr. Rawkins are dismissed as having no reasonable prospect of success.
49With respect to Dr. Leszcz, again, Ms. Macanovic has no evidence to substantiate her suspicion that Dr. Leszcz mentioned his knowledge of her human rights complaint in an effort to intimidate her. Even if I accept that Dr. Leszcz told Ms. Macanovic he was not in the "spirit" to help her, this is not sufficient to support a finding of discrimination. Ms. Macanovic complained to Dr. Leszcz about Dr. Rawkins. In my view there was no basis for her complaints about Dr. Rawkins and Dr. Leszcz's failure to take up Ms. Macanovic's complaints is more consistent with that explanation than Ms. Macanovic's allegation that Dr. Leszcz was engaging in discrimination and reprisal. Accordingly, the allegations against Dr. Leszcz are dismissed as having no reasonable prospect of success.
50With respect to Mary Jane Dykeman, Ms. Macanovic alleges that the act of discrimination engaged in by her is the act of passing on Ms. Macanovic's email to the head of security. Again, this suspicion is insufficient to demonstrate that Ms. Dykeman was acting on prejudices and stereotypes about Ms. Macanovic and accordingly this allegation is dismissed as having no reasonable prospect of success.
51With respect to the allegations against Ms. Kanee for failing to investigate the allegations against Dr. Rawkins and Dr. Leszcz, I agree with Ms. Kanee's conclusions that there was nothing of any substance to investigate against either doctor. I also accept, based on the evidence of both Ms. Kanee and Ms. Macanovic, that it was difficult to understand the nature of Ms. Macanovic's allegations against Dr. Rawkins, that those allegations were interwoven with other allegations about past treatment at Mount Sinai which are not before me, and that Ms. Macanovic gave Ms. Kanee's staff a number of mixed messages about whether or not she wanted to pursue her allegations. Ms. Kanee spoke with Dr. Leszcz to try and understand the applicant's concerns and concluded that there was no further investigation required. Accordingly, the allegations against Ms. Kanee are dismissed as having no reasonable prospect of success.
52With respect to the allegations against Mount Sinai relating to the letter from Mr. McCormack, Ms. Macanovic does not deny the flurry of phone calls and unannounced visits to staff at Mount Sinai which preceded that email and which are explicitly set out as the reason for the request. Therefore, I find that there is no reasonable prospect that Ms. Macanovic will be able to prove that the stated basis for the request was pre-textual and that prejudicial assumptions about her as a person with mental health problems were a factor in the decision to send Ms. Macanovic that email. Accordingly, the allegations against Mount Sinai are dismissed as having no reasonable prospect of success.
ORDER
53The Application is dismissed on the basis that it has no reasonable prospect of success.
Dated at Toronto, this 15th day of October, 2012.
"Signed by"
Leslie Reaume
Vice-chair