LaLonde v. Toronto East General Hospital, 2012 HRTO 2153

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dianne LaLonde Applicant

-and-

Toronto East General Hospital Respondent

decision

Adjudicator: Sheri D. Price

Date: November 15, 2012

Citation: 2012 HRTO 2153

Indexed as: LaLonde v. Toronto East General Hospital

APPEARANCES

Dianne LaLonde, Applicant Self-represented

Toronto East General Hospital, Respondent Jennifer Fantini, Counsel

INTRODUCTION

1This is an Application under s.45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges that the respondent breached the settlement of her 2011 human rights Application against it. Specifically, the applicant alleges that the respondent breached a provision in the March 26, 2012 Minutes of Settlement in which the respondent confirmed that it had provided certain staff training on “Transgendered Health Competency”.

2The respondent denies the applicant’s allegations.

3A hearing was held by way of teleconference on November 8, 2012, at which the parties were given an opportunity to present their evidence and arguments with respect to the Application.

4At the hearing, the respondent called Cathy Craig, the respondent’s Emergency Supervisor at the relevant time, to testify as to the training she developed and provided to the respondent’s ER staff on Transgendered Health Competency. The applicant made submissions during the hearing, but did not call any witnesses.

BACKGROUND

5In or around 2011, the applicant filed an Application with the Tribunal alleging that the respondent had infringed her rights under the Code. That Application was settled at mediation and the terms of the settlement were set out in March 26, 2012 Minutes of Settlement between the applicant and the respondent.

6One of the terms of the Minutes of Settlement between the parties stated:

The Hospital confirms to the Applicant that it has conducted the staff training as detailed in the attached Schedule “A”.

7Schedule “A” of the Minutes of Settlement provided:

Toronto East General Hospital (“TEGH”) confirms that it completed Gender Sensitivity training with its staff, and that such training was provided to approximately 90% of ER staff by the end of 2010.

In addition, TEGH developed a specific program entitled “Transgendered Health Competency”, and that such training has been provided to ER staff over the past 6 months. The materials were developed in consultation with the Sherbourne Clinic. This training is a work in progress and continues to be delivered at different levels within the Hospital, and will be expanded to outpatient clinics.

8In early 2012, the respondent delivered a mandatory four-hour training session to all RNs and RPNs in the respondent hospital’s emergency department. As the respondent’s Emergency Supervisor, Ms Craig testified that she was involved in the development of that training. In particular, Ms Craig, who had had experience with transgendered health issues in her previous employment, testified that she proposed the inclusion of a module on “Transgendered Health Competency” in the four-hour training session. Ms Craig testified that her proposal was accepted and that she took responsibility for the training on transgendered health.

9Ms Craig testified that she initially contacted Rainbow Health Ontario (“Rainbow Health”) to see if it could come into the hospital to deliver the training on transgendered health. However, it eventually became clear that that would not be feasible. This, Ms Craig testified, was because Rainbow Health advised her that it could not deliver its training in less than one hour; and only 15 minutes of the four-hour training session had been devoted to this particular topic. Ms Craig testified that Rainbow Health directed her to certain articles and other resources on its website that Ms Craig herself could use to develop her own training session, which she did. Specifically, Ms Craig testified that she drew on six different documents about transgendered health issues available on Rainbow Health’s website to develop a PowerPoint presentation focusing on information that would assist caregivers at the point of care. Ms Craig testified that she used that presentation to deliver the training module on Transgendered Health Competency to RNs and RPNs in the respondent’s emergency department. She testified that, during the training, she also provided staff with pamphlets that she had obtained from Rainbow Health that provided further information and resources related to transgendered health issues.

10Ms Craig testified that the respondent’s training on Transgendered Health Competency was delivered to small groups of between five to 12 nurses at a time, over the course of approximately three months. She testified that the training was completed in April 2012.

LEGISLATIVE PROVISIONS

11The relevant provisions of the Code are s. 45.9(3) and (8), which read as follows:

(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(8) If, on an application under subsection (3), the Tribunal determines that a party has contravened the settlement, the Tribunal may make any order that it considers appropriate to remedy the contravention.

ANALYSIS AND DECISION

12The applicant contends that the respondent did not provide the staff training on “Transgendered Health Competency” that it confirmed it had provided in the March 2012 settlement of this matter. The applicant advances two arguments in support of this contention.

13First, the applicant submits that, after entering into the March 2012 settlement, she contacted Rainbow Health Ontario, part of the Sherbourne Clinic (also referred to as the Sherbourne Health Centre), to investigate whether the respondent had engaged someone from Rainbow Health to train its staff. The applicant submits that she learned that, although the respondent had made an initial inquiry about having Rainbow Health train its staff, the respondent had not followed up on it. The applicant submits that the respondent’s failure to engage someone from Rainbow Health Ontario to train its staff constituted a breach of the March 2012 Minutes of Settlement.

14Second, the applicant alleges that when she went to the respondent hospital subsequent to the March 2012 settlement, certain members of the respondent’s staff treated her in a manner that was inconsistent with the Code. The applicant contends that this shows that the respondent did not do the training it was supposed to have done pursuant to the March 2012 Minutes of Settlement.

15In order to succeed in her Application under s. 45.9 of the Code, the onus is on the applicant to prove, on a balance of probabilities, that the respondent contravened the provisions of the March 2012 Minutes of Settlement relating to staff training. Based on the evidence and submissions before me, I find that the applicant has not done this.

16In the Minutes of Settlement it entered into with the applicant in March 2012, the respondent confirmed that it had developed and provided training on “Transgendered Health Competency” to the respondent’s ER staff over the six-month period preceding the settlement; and that materials used in such training had been developed in consultation with the Sherbourne Clinic. The respondent never confirmed to the applicant in the Minutes of Settlement that it had engaged someone from Rainbow Health to actually do the training. Accordingly, the fact that the training was delivered by a staff person at the respondent hospital, namely Ms Craig, did not constitute a breach of the Minutes of Settlement.

17The only commitment the respondent made to the applicant relating to Rainbow Health and/or the Sherbourne Clinic was that the materials used to train staff on Transgendered Health Competency had been developed in consultation with the Sherbourne Clinic. Based on the evidence before me, I am satisfied that there was no breach of this provision of the Minutes of Settlement. Ms Craig testified that Rainbow Health directed her to certain written materials on its website that she could use to develop staff training on transgendered health issues; and that she did consult and use a number of those resources to develop the training. Her uncontradicted evidence on these points was straightforward and clear and I accept it as credible. I am satisfied, based on the evidence, that the nature and extent of Ms Craig’s interaction with Rainbow Health in the development of her training module was such that the materials used to train the respondent’s staff were developed “in consultation with” the Sherbourne Clinic, of which Rainbow Health is a part.

18In her Application and during the hearing, the applicant suggested that the fact that the training on Transgendered Health Competency was only 15 minutes long constituted a breach of the Minutes of Settlement. I agree with the respondent, however, that there is nothing in the Minutes of Settlement about the length of the training that the respondent had conducted among its staff. Accordingly, the fact that the training on Transgendered Health Competency comprised 15 minutes of a four-hour mandatory training session cannot give rise to breach of the Minutes of Settlement, at least not in the circumstances of this case. As the respondent points out, it was open to the applicant to seek assurances about the length of the training that had been conducted by the respondent during the mediation process, if that was important to her. Having failed to negotiate such assurances into the Minutes of Settlement, however, it is not open to the applicant to challenge the sufficiency of the training that was provided based on her own views about what would have constituted adequate training. This is particularly so given that the Minutes of Settlement merely described training that had already been done by the time they were entered into; they did not oblige the respondent to provide future training.

19I must also dismiss the argument that the alleged mistreatment of the applicant by one or more members of the respondent’s staff, at some point after the March 2012 Minutes were signed, proves that the respondent did not do the training that it confirmed it had done in the March 2012 settlement. I agree with the respondent that, even if someone from the respondent hospital did treat the applicant in a manner that was inconsistent with the Code after March 2012, that does not prove that the hospital never did the training in question. Indeed, the direct evidence of Ms Craig, which I have accepted as credible, proves that the hospital did do the training that it confirmed to the applicant that it had done in the March 2012 Minutes of Settlement.

20In sum, the applicant has failed to establish that the respondent contravened the provisions of the March 2012 Minutes of Settlement relating to staff training. The Application is dismissed accordingly.

ORDER

21The Application is dismissed.