Abdisamad Ibrahim v. Public Health Ontario, 2012 HRTO 522

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdisamad Ibrahim

Applicant

-and-

Public Health Ontario

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: March 13, 2012

Citation: 2012 HRTO 522

Indexed as: Ibrahim v. Public Health Ontario

APPEARANCES

Abdisamad Ibrahim, Applicant ) Self-represented

Public Health Ontario, ) Respondent ) Samir Khalil, Counsel

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) in which the applicant alleges that the respondent discriminated against him on the basis of race and colour with respect to services, contrary to s.1 of the Code.

2Pursuant to a Case Assessment Direction dated November 4, 2011, the Tribunal directed that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Application or part of the Application will succeed.

3The summary hearing was held by teleconference on March 7, 2012.

4The respondent attended the summary hearing and indicated that its correct name is Public Health Ontario. The style of cause is amended accordingly.

5During the summary hearing, the applicant was given an opportunity to explain how he could prove his allegations that the respondent infringed his rights under the Code.

6For the reasons that follow, I find that the Application has no reasonable prospect of success. The Application is dismissed accordingly.

BACKGROUND

7The respondent operates a network of public health laboratories in Ontario, which perform a variety of laboratory tests for the diagnosis of infectious diseases. Such tests are carried out on the basis of medical requisitions from physicians or midwives. All testing for the diagnosis of infection with human immunodeficiency virus (“HIV”) in Ontario is carried out at the respondent’s public health laboratories. The respondent indicated during the summary hearing that it carries out approximately 1000 HIV tests per day.

8The applicant self-identifies as a Black man of Ethiopian origins.

9During the period from 2010 to 2012, the applicant was tested for HIV on nine separate occasions, on the basis of medical requisitions from nine different physicians. All of the applicant’s tests were performed at the respondent’s Toronto laboratory. All of the applicant’s test results indicated that the applicant was not infected with HIV (i.e. that he was HIV-negative).

10The applicant contends that, contrary to the test results provided to his doctors by the respondent, he is actually HIV-positive. The applicant contends that he knows that he is infected with HIV because of his various symptoms, including eye infections, cataracts, thrush, night sweats, joint pain, and rectal bleeding, among other symptoms. The applicant indicates that he is very distraught because he cannot obtain the treatment he desperately needs in the absence of laboratory tests confirming that he is infected with HIV.

11The applicant alleges that the respondent discriminated against him contrary to the Code by falsifying his HIV test results and withholding the fact that he is HIV-positive, thereby depriving him of the medical treatment he needs.

ANALYSIS

12The Tribunal’s power to hear and determine human rights applications is based on the Code, which, among other things, prohibits discrimination with respect to services on the basis of the grounds set out in the Code. The Tribunal does not have the power to remedy mistreatment, discrimination, or harassment that is not based on a prohibited ground in the Code. Thus, in order to succeed in his Application, the applicant would have to prove not only that he was treated in a disadvantageous manner by the respondent, but that such disadvantageous treatment was linked to his race and/or colour.

13In my view, the applicant has no reasonable prospect of success in proving that the respondent discriminated against him on the basis of his race and/or colour contrary to the Code.

14In order to prove that the respondent discriminated against him contrary to the Code, the applicant would first have to establish that the respondent treated him in a disadvantageous manner. The applicant submits that the respondent treated him in a disadvantageous manner by falsifying his HIV test results. However, it is clear that the applicant has no way of proving that the respondent did this.

15In order to prove that the respondent falsified his test results, the applicant would have to prove that the test results were, in fact, false. In other words, the applicant would have to establish in evidence that, contrary to the test results produced by the respondent, the applicant was HIV-positive during the relevant time frame. It is clear to me based on the applicant’s submissions during the summary hearing that the applicant cannot prove this. The applicant submits that he intends to prove that he is HIV-positive by showing the adjudicator his various medical symptoms. He submits that if an adjudicator could just see him, he or she would realize that the applicant must be HIV-positive. I cannot agree. The Tribunal does not have the medical expertise to conclude that the applicant is HIV-positive by observing his medical symptoms, whatever they are. On the contrary, the Tribunal could only conclude that the applicant was HIV-positive if it were presented with evidence of that fact from a qualified medical practitioner. It is clear that no such evidence exists and that the applicant would not be in a position to present any such evidence if this matter were to proceed to a hearing on the merits. Nor is the applicant’s belief that he is HIV-positive, however sincerely held, a basis upon which the Tribunal might conclude that the applicant is HIV-positive. The applicant is not a medical doctor and is not qualified to diagnose himself as being HIV-positive and/or to give evidence of that “fact” at a hearing before the Tribunal.

16In any event, even if the applicant could establish that the respondent treated him in a disadvantageous manner by issuing false HIV test results for him, there are simply no facts alleged in this case that, if true, would allow the Tribunal to conclude that the respondent’s actions were linked to the applicant’s race and/or colour – a link that the applicant would have to establish in order to prove that the respondents infringed his rights under the Code. The applicant contends that the respondent knew of his race and/or colour because of his name and his accent. Even if that were true, the mere fact that the respondent knew the applicant’s race and/or colour is not a basis upon which the Tribunal might conclude that the respondent treated the applicant in a disadvantageous manner because of his race and/or colour.

17The applicant may honestly believe that the respondent did the things he alleges and that it did them because of his race and/or colour. However, the applicant’s belief that the respondent mistreated him on the basis of his race and/or colour is not evidence that the respondent did so. It is not open to the Tribunal to make a finding of discrimination based only on the applicant’s assertions, feelings or beliefs. Having heard from the applicant at the summary hearing, it is clear that, if this matter were to proceed to a hearing on the merits, the applicant would be unable to present evidence upon which the Tribunal might conclude that the respondent treated the applicant in a disadvantageous manner on the basis of a prohibited ground of discrimination under the Code. The Application therefore has no reasonable prospect of success and must be dismissed.

ORDER

18The Application is dismissed.