Mark Fisher v. Chicopee Park Dental and Steve Zafiris, 2012 HRTO 572

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Fisher

Applicant

-and-

Chicopee Park Dental and Steve Zafiris

Respondents

DECISION

Adjudicator: Sheri D. Price

Date: March 19, 2012

Citation: 2012 HRTO 572

Indexed as: Fisher v. Chicopee Park Dental

APPEARANCES

Mark Fisher, Applicant ) Self-represented

Chicopee Park Dental and Steve Zafiris, )

Respondents ) No one appearing

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 respondents discriminated against him on the basis of disability and place of origin with respect to services, goods, and facilities, contrary to s.1 of the Code.

2Pursuant to a Case Assessment Direction dated September 21, 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 2, 2012. The applicant was given an opportunity to explain how he could prove that the respondents infringed his rights under the Code in the manner alleged. The respondents did not attend the summary hearing.

4For the reasons that follow, I find that the Application has no reasonable prospect of success. The Application is dismissed accordingly.

BACKGROUND

5The respondent has not yet been required by the Tribunal to file a Response to the Application. Accordingly, the facts upon which this Decision is based are the facts as asserted by the applicant.

6The applicant has one or more “disabilities” within the meaning of the Code and has been in receipt of Ontario Disability Support Program (“ODSP”) benefits for a number of years.

7The applicant receives the ODSP dental card as part of his ODSP benefits. The applicant submits that he can use the ODSP dental card to pay for dental services by presenting it to his dentist, who then bills the Ontario Disability Support Program directly for services provided to the applicant in accordance with the applicant’s coverage for “basic” dental services.

8On August 9, 2011, the applicant went to the respondent dental office, which is located within walking distance of his residence, with the intention of making an appointment to see the personal respondent, a dentist. The receptionist began to take down the applicant’s personal information, such as his name, etc. (which fact the applicant submits shows that the respondents were accepting new patients). However, when the applicant informed the receptionist that he would be paying for dental services with the ODSP dental card, the receptionist told him that the respondents had already reached their “quota” of patients wishing to pay for services with the ODSP dental card for the year. She then directed the applicant to a dental office in another area of town.

ANALYSIS

9The 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, goods and facilities 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 respondents, but also that such disadvantageous treatment was linked to his disability(ies) and/or place of origin.

Discrimination on the Basis of Disability

10The applicant submits that the respondents treated him in a disadvantageous manner when they refused to provide him with dental services on August 9, 2011 and that such disadvantageous treatment was clearly based on his disability(ies). Specifically, the applicant submits that when the respondents refused to provide him with dental services because he wanted to pay for them with the ODSP dental card, they were effectively refusing the applicant service because of his disabilities, since the only reason the applicant has the ODSP dental card is because he is disabled.

11Although the applicant’s argument is not without appeal, the fact of the matter is that the respondents did not refuse to provide the applicant with services because he is a person with a disability or because he has a specific disability. The respondents refused to provide services to the applicant because of the manner in which the applicant wanted and/or needed to pay them. This is evident from the applicant’s acknowledgement that the respondents would have been willing to provide him with dental services – notwithstanding his disabilities – if he had been able to pay them directly at their regular rates for dental services. (The applicant suggests that ODSP pays the respondents less for their services than the respondents would otherwise charge private clients). In other words, the differential and disadvantageous treatment the applicant allegedly received from the respondents was based not on the applicant’s disability, but on his ability to pay for the respondents’ services and/or his method of payment. Disadvantageous treatment with respect to services on these grounds is not a form of prohibited discrimination under the Code.

12In addition, I note that although the Code specifically prohibits discrimination on the basis of receipt of public assistance (which would include ODSP benefits) with respect to housing, it does not prohibit such discrimination with respect to “services, goods and facilities”. In my view, it would not be in keeping with the legislative intention behind the exclusion of “receipt of public assistance” as a prohibited ground of discrimination with respect to services to find that the respondents’ refusal to provide services to someone wishing to pay with the ODSP dental card is prohibited by the Code.

13I appreciate that the applicant feels that it is unfair for the respondents to refuse to provide services to persons who, through no fault of their own, need to rely upon the ODSP dental card in order to pay for dental services (particularly, he contends, if the respondents have received government-subsidized dental training). As noted above, however, the Tribunal does not have the power to address unfair treatment per se. It only has the power to deal with treatment that is discriminatory on the basis of prohibited grounds under the Code. In my view, the fact that the applicant experienced disadvantageous treatment on the basis of his ability to pay for services and/or his method of payment is not a basis upon which the Tribunal might conclude that the applicant was discriminated against on the basis of disability, notwithstanding that the applicant’s ability to pay and/or method of payment is connected to his disability.

14Accordingly, I find that the applicant has no reasonable prospect of success in proving that the respondents discriminated against him with respect to services on the basis of disability. This aspect of the Application is dismissed accordingly.

Discrimination on the Basis of Place of Origin

15The applicant also alleges that the respondents’ refusal to provide him with dental services constituted discrimination on the basis of place of origin.

16During the summary hearing, the applicant explained that when the respondents, whose office is located within walking distance of his home, refused to accept him as a patient, he was required to travel a greater distance from his residence in order to obtain dental services, something that is particularly difficult for the applicant because of his disability(ies).

17Essentially, the applicant is arguing that the respondents’ policy of limiting the number of ODSP dental card patients they will accept in a given year had a disadvantageous impact on him because of his place of residence, not his place of origin (which the applicant indicated during the summary hearing was a different town in Ontario from the one where he currently resides). Place of residence, standing on its own, as it does in this case, is not a prohibited ground of discrimination under the Code. Gardezi v. Insurance Corporation of British Columbia, 2010 BCHRT 262; Dobbin v. Canada (Department of Fisheries and Oceans), [2005] FC 1020 at para. 9.

18In the circumstances, the applicant’s claim that the respondents discriminated against him on the basis of his place of origin has no reasonable prospect of success and must be dismissed.

ORDER

19The Application is dismissed.