HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carlos Flores
Applicant
-and-
Sunnybrook Health Sciences Centre and
Chi-Yiu Cheung
Respondents
Decision
Adjudicator: Alan G. Smith
Indexed as: 2012 HRTO 222
APPEARANCES
Carlos Flores, Applicant ) Self-represented )
Sunnybrook Health Sciences Centre, )
Respondent ) Michelle Henry, Counsel
Chi-Yiu Cheung, Respondent ) Glynnis Burt, Adam Ship and ) Helen Burnett, Counsel
BACKGROUND
1The applicant filed an Application with the Tribunal on July 27, 2010, alleging discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application did not note any grounds for the alleged discrimination and indicated the social area of alleged discrimination as “employment”. However, the Application’s narrative contained allegations based on the provision of medical/health services by the respondents. The applicant’s employer has not been named as a respondent.
2In essence, the applicant alleges two acts of discrimination:
a) That the respondents failed to provide a copy of the results of a blood test for HIV to the applicant’s family physician when it was requested by the applicant; and
b) That the respondents failed to protect the applicant’s privacy rights by revealing to the applicant’s employer and co-workers that the applicant was HIV positive.
3Pursuant to s. 43(2) of the Code and Rule 19A of the Tribunal’s Rules of Procedure, a summary hearing by teleconference was held before me on January 10, 2012. The purpose of the summary hearing was to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that it would succeed.
4Carlos Flores participated in the summary hearing on his own behalf. Both responding parties also participated through counsel and made oral submissions. The applicant and the respondents’ written submissions were also considered by me.
FACTS
5The applicant was admitted to the respondent hospital on September 20, 2007. The following day a blood sample was taken from the applicant in order to test for HIV. The applicant was discharged on that same day.
6On October 16, 2007, the respondent hospital received a request from the applicant’s family physician for the applicant’s medical records.
7The respondent hospital admits that due to a clerical error the results of the applicant’s HIV test was not provided to the family physician until September 23, 2009, and has apologized to the applicant for the delay.
8The applicant returned to work in October 2007 and alleges that, as a result of information provided by the respondents, his co-workers believed he was HIV positive. However, the applicant provided no evidence to back up his allegation of wrongdoing on the part of the respondents. In particular, the applicant was unable to identify any evidence that he proposed to call at a hearing in this matter that would establish that any of the respondents communicated with his employer or his co-workers regarding the results of his HIV test.
9In the Application, the applicant provided a copy of the results of the HIV test conducted using the blood sample collected on September 21, 2007. The results indicate “Non-reactive…No antibodies detected”. In other words, the results indicated that the applicant was HIV negative.
10During the hearing I asked the applicant to clarify on what grounds he was claiming discriminatory treatment by the respondents. He indicated he believed he had received discriminatory treatment based on a “disability” i.e., that he was HIV positive. He confirmed that disability was the sole ground he was alleging.
11Given that the HIV test results of September 2007 indicated that the applicant was HIV negative, I asked the applicant to further clarify his assertion that he suffered from a disability. He responded that, even though he believed he was suffering from the symptoms of AIDS he had, “never been formally diagnosed with HIV”.
12I also inquired of the applicant as to what evidence he had that the alleged negative treatment he received at the hands of the respondents was because of his disability. He responded that, “it is the only reason I can think of” and “I can’t answer that…I don’t know the reason behind…”.
ANALYSIS
13As noted above the hearing was convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure. This Rule reads, in part, as follows:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
14The issue that Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance at para 8 and 9:
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.
15It is also important to keep in mind, as the Tribunal pointed out in Abdul v. York University, 2011 HRTO 1851, at para. 17:
Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.
In other words, the Code is concerned with remedying discrimination in certain social areas on the basis of proscribed grounds. It does not deal with general allegations of unfairness or other social ills.
16An applicant may honestly believe and genuinely feel that the respondent has treated him the way it allegedly did because of a disability, perceived disability or other prohibited ground under the Code. However, the applicant’s belief that the respondent mistreated him on the basis of a disability is not evidence. It is not open to the Tribunal to make a finding of discrimination or harassment based only on the applicant’s feelings or beliefs. The Tribunal cannot find that the respondent discriminated against or harassed the applicant unless there are facts alleged which, if true, would allow the Tribunal itself to link the respondent’s actions towards the applicant to his disability or another prohibited ground under the Code. See the Tribunal’s recent decision, Hui v. EPM Global Systems, 2011 HRTO 2121.
17Given that the applicant could provide no evidence of a link between his alleged disability and the alleged discriminatory treatment he received there is no reasonable prospect that the Application will succeed at a hearing on the merits. The Tribunal has before it only a bald allegation of discrimination with nothing to suggest that the actions of the respondents were connected with grounds under the Human Rights Code.
18Even more fundamentally, I find that given the applicant’s admission that the test results were HIV negative and that he has never been diagnosed as HIV positive, he has failed to establish that he falls within the proscribed ground of “disability” in accordance with the Code. Therefore, the Application has no reasonable prospect of success.
ORDER
19Accordingly, the Application is dismissed.
Dated at Toronto, this 31st day of January, 2012.
“signed by”
Alan G. Smith
Member