Iarossi v. Herzog, 2012 HRTO 893

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Iarossi

Applicant

-and-

Melvin Herzog, Stanley Klimitz, Paul Cohn, M. Steele, Dr. Kivlichan, Angela Mendoza-Baez, Denise Jespersen, Gary Klein, Michael Watson, Mohammed Manjra, and Stan Mei

Respondents

A N D B ET W E E N:

Frank Iarossi

Applicant

-and-

Maple Leaf Medical Clinic

Respondent

DECISION

Adjudicator: Ena Chadha

Date: May 4, 2012

Citation: 2012 HRTO 893

Indexed as: Iarossi v. Herzog

APPEARANCES

Frank Iarossi, Applicant ) Self-represented

Melvin Herzog and Denise ) Glynnis Burt, Counsel Jepersen, Respondents )

Stanley Klimitz, Respondent ) Jack Copelovici, Counsel

Angela Mendoza-Baez, Respondent ) Self-represented

Gary Klein, Respondent ) Susan Chapman, Counsel

Michael Watson, Respondent ) Raj Anand, Counsel

Paul Cohn, Respondent ) Self-represented

Mohammed Manjra, Respondent ) Beth Beattie, Counsel

Stan Mei, Respondent ) Geoffrey Baker, Counsel

Dr. Kivilichan, Respondent ) No One Appearing

M. Steele, Respondent ) No One Appearing

Maple Leaf Medical Clinic, Respondent ) No One Appearing

INTRODUCTION

1Application 2010-07674-I was filed on December 20, 2010, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination and reprisal with respect to disability and creed in the areas of services, goods and facilities. This Application was filed against 11 individual respondents.

2On July 18, 2011, the Tribunal issued a Case Assessment Direction ordering that a summary hearing be held in Application 2010-07674-I.

3On October 6, 2011, the applicant filed Application 2011-10018-I as against respondent Maple Leaf Medical Clinic (“Clinic”) alleging discrimination with respect to disability and creed in the areas of services, goods and facilities. This Application referenced, and appeared related to, the first Application.

4The Tribunal issued a second Case Assessment Direction indicating that a joint summary hearing would be scheduled for both Applications in order to address the issue of whether some aspects, or all, of the Applications should be dismissed on the basis that there is no reasonable prospect of success.

5Accordingly, a hearing by teleconference was held on December 13, 2011, at 1:30 p.m. The applicant, certain individual respondents, and counsel for some respondents participated on the conference call. The applicant filed numerous documents and submissions and various respondents filed submissions and case law.

DECISION

6Having carefully considered the parties' submissions and all of the documentary materials, I conclude that there is no reasonable prospect that these Applications will succeed. Accordingly, I dismiss both Applications for the reasons that follow.

SUMMARY OF ALLEGATIONS

Application 2010-07674-I

7The applicant alleges that he was discriminated because of his disabilities (bi-polar disorder and post-traumatic stress disorder) and because of his creed (witchcraft and “Quabala”). The applicant asserts a myriad of allegations and his chronology, documents, and submissions are in excess of a hundred pages.

8The respondent parties are six dentists, two physicians, an investigator with the Royal College of Dental Surgeons of Ontario (“College”), a caseworker with the Health Professionals Appeal and Review Board (“Board”) and an employee of the Ontario Disability Support Program (“ODSP”).

9The applicant indicates that he was a patient of the various dentists and physicians from approximately 2006 to 2010. The applicant makes numerous, similar allegations against these respondents, in effect that all were unprofessional, negligent, inflicted pain, and caused damage to his teeth and health. In certain instances, the applicant alleges that the respondents refused to provide a particular treatment or medication that he sought and/or performed unnecessary work and tests. The applicant believes that he was subjected to mistreatment because he is disabled and also because he discussed his spirituality with some of the respondents.

10At the hearing, the applicant did not pursue the claim that he was mistreated by the respondents because of his specific disabilities; rather, the applicant alleged he was victimized because he is an ODSP recipient. The applicant alleges that the respondent dentists took advantage of his ODSP insurance benefits and defrauded the system. The applicant also alleges that certain respondents reprised against him for his complaints with the College and Board.

11The applicant further alleges that the College, the Board and the ODSP are protecting the individual respondents and that the College investigator, the Board caseworker and the ODSP representative all have deliberately ignored his concerns about the respondents.

Application 2011-10018-I

12The focus of Application 2011-10018-I is on the applicant’s alleged interactions with a physician at the respondent Clinic from 2005 to 2010. In this second Application, the applicant again claims that he was discriminated because of his disabilities and his creed, which he identifies as various mystical and magical beliefs, eastern theologies and other religions.

13The applicant alleges that the physician at the respondent Clinic did not provide proper care and that the physician “should have found out what was wrong with [him] in 2009”. The applicant alleges that he did not receive appropriate “standard of care” from the physician because, only after the physician reviewed some of the applicant’s documents in his first Application, did the physician suggest the applicant may wish to consult a cancer specialist.

ANALYSIS

14Rule 19A of the Tribunal’s Rules of Procedure states that the Tribunal may hold a summary hearing on its own initiative or at the request of a party on the question of whether the 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.

15At a summary hearing stage, an applicant is required to describe what evidence the applicant has, or is reasonably available to him, that could demonstrate a link between the respondent’s actions and the alleged prohibited grounds of discrimination. The Tribunal does not evaluate or weigh evidence, does not engage in fact finding, and does not assess the respondent’s evidence that could refute the applicant’s allegations.

16In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-9, the Tribunal made the following observations about the lines of inquiry involved in a summary hearing:

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.

17At the Summary Hearing conference call, the applicant was given the opportunity to proceed first to explain how his concerns may constitute an infringement of the Code and to describe any evidence he had, or that could be obtained, which may establish a link between his allegations and the prohibited grounds of disability and creed.

18I find the Applications must be dismissed as having no reasonable prospect of success. The applicant did not point to any evidence or expected evidence that could show a nexus between the respondents’ alleged conduct and the Code-grounds as cited in his Applications and, further, did not demonstrate how some of the allegations could give rise to a Code violation.

Creed

19With respect to the applicant’s allegation of discrimination based on creed, the applicant commenced his oral submissions acknowledging that he had no evidence, outside of his assertions, that his religious beliefs were known by the respondents. The applicant conceded that he was unable to point to any evidence that connected the respondents’ alleged mistreatment to his creed.

20Even if I accept the applicant’s claim that he informed the respondents of his religious beliefs, except for his suspicion that the respondents disliked his religion, the applicant did not highlight any other facts or potential evidence that indicated a nexus between the impugned conduct and Code ground. As such, given that the applicant is unable to support his position that there is a link between the alleged conduct and his spiritual beliefs/religion, I find that there is no reasonable prospect that the allegations of creed discrimination will succeed.

Disability

21In regards to discrimination based on disability, the applicant’s allegations appear two-fold: 1) the medical treatment provided by the respondents did not meet an appropriate standard of care and 2) the medical care was inferior because the applicant received ODSP coverage. I am not persuaded that there is a reasonable prospect of success with respect to either of these positions.

22I conclude the applicant was unable to establish anything more than mere suspicion and speculation that his experiences with the respondents were related to his disabilities. The applicant does not allege that respondents failed to consider or accommodate his disability-related needs. Rather, the applicant claims that all of the respondents provided him with some form of inadequate service. Apart from his personal belief that he likely would have been treated better if he was not disabled, the applicant did not indicate what evidence he had, or would be able to rely on, to establish his allegations in this regard. The fact that an applicant simply believes he should have received better quality care is not evidence of discrimination without some proof that the impugned conduct corresponded with the Code. I also find that the applicant did not point to any evidence of a link between his ODSP coverage and any specific alleged mistreatment by the respondents because of his disabilities.

23While evidence of deficient or improper care may be a factor amongst the various evidentiary and human rights considerations involved in assessing discrimination, a disagreement about what constitutes the appropriate standard of care, without more, does not establish that the disputed medical services were related to Code grounds. In Wilson v. Dixie Road Medical Association, 2011 HRTO 1607, the Tribunal noted that “…a medical diagnosis based on an error of fact is not in and of itself sufficient to give rise to a finding of discrimination under the Code.” See also Stangret v. Naqji, 2009 HRTO 1431, and TenBruggencate v. Elgin (County), 2010 HRTO 1467. As such, with respect to the applicant’s first argument, in the absence of some indicator of discrimination or other evidence, I do not accept that the applicant’s belief that the alleged treatment was below the tort standard of care alone is sufficient evidence of a Code contravention.

24With respect to the applicant’s second argument, the applicant claimed that he did not receive suitable care from the various dentists and doctors due to the fact that he was on ODSP. The applicant submits that his ODSP-related allegation is supported by the fact that on numerous occasions he was dissatisfied with the respondents’ medical treatment and diagnosis. I find that there is no reasonable prospect that the applicant will succeed in making out this allegation. As observed in Stangret, above, the Code does not create a positive obligation to provide the specific medical treatment an applicant seeks or prefers as long as the treatment being provided is in a non-discriminatory manner.

25In addition, the applicant was unable to point out how ODSP coverage had any relevance to the type of services or quality of care provided by the respondent physicians who are part of the Ontario Health Insurance Plan and not compensated through ODSP. Further, the Application indicates that at least two of the respondent dentists were paid privately by the applicant and, therefore, ODSP coverage does not appear to have been a factor in the arrangements between the applicant and those dentists.

26The applicant also appears to allege that some respondent dentists engaged in ODSP billing fraud and appears to imply this was somehow related to the substandard care. Other than highlighting an erroneous date on a single invoice, the applicant had no evidence to support his bald allegation of billing fraud and had absolutely no evidence or expected evidence connecting any alleged billing impropriety with the nature or scope of dental work performed on him. Notwithstanding the absence of any Code linkages, the applicant appears to seek a Tribunal hearing to investigate his suspicions of ODSP fraud. It is not the Tribunal’s role to investigate freestanding allegations of billing fraud.

27With respect to the remaining dentists, aside from his claims that he was unhappy with the dental work, the applicant was unable to highlight what evidence was available to him to demonstrate that the alleged dental care was substandard because of ODSP coverage. The applicant acknowledges that these dentists accepted his ODSP coverage and provided services, some for several years, even though the applicant is now displeased with the quality of work.

28The applicant did not point to any information or indicator that would signal that ODSP coverage or an alleged ODSP fraud played a role in the care he received from the respondent dentists or doctors. Having carefully considered the applicant’s assertions and arguments, I find the allegations that he received discriminatory medical services because he is an ODSP recipient do not have a reasonable prospect of success.

29Aside from making speculative claims that the three non-medical respondents (College investigator, Board caseworker and ODSP worker), and their respective organizations, colluded to protect the dentists and doctors, the applicant did not point to any evidence that the alleged actions had a nexus to Code grounds. The applicant clearly feels that he was ignored or treated unfairly by the three respondents; however, the applicant was unable to explain how his interactions with these individuals were related to, or occurred in connection to, the Code grounds.

30The main thrust of the applicant’s allegations relate to how these three respondents handled his files. He disputes the adequacy of their investigations and/or propriety of their administrative decisions in processing his cases. From the applicant’s description of his concerns, there does not appear to be any differential or disadvantageous treatment or evidence connecting the alleged events to the Code. In fact, in regards to the ODSP worker, the applicant appears to acknowledge that he only filed the Application as a means to gain production of documents and that there were no specific allegations of creed or disability discrimination. As such, even if the conduct he complains of with respect to each of the individuals actually occurred, I do not find that there is any reasonable prospect that the applicant will be able to link the impugned behaviour to Code grounds.

31The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination in specific areas (for example, employment, housing, contracts, etc.) on the basis of specific protected grounds listed in the Code (for example, age, gender, race, etc.). The Tribunal does not have a general power to inquire into claims of unfairness or, as in this case, behaviour that is perceived to be negligent medical care or unfavourable administrative decisions, outside of the grounds listed in the Code. For example, in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, the Tribunal stated at para. 17:

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 or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

32I determine that the Applications have no reasonable prospect of success and, accordingly, must be dismissed. At the Summary Hearing, the applicant merely asserted bare suspicions and accusations of negligent medical care, billing fraud and improper handling of administrative matters, with no reference to any evidence in support of his claims. As stated in Villella v. Brampton (City), 2011 HRTO 1085:

The Code is not designed to remedy all instances of differential treatment, poor service delivery or professional misconduct. The alleged treatment must be linked in a substantive way to a Code ground. The applicant must show more than mere subjective suspicion to establish a link between the respondent’s alleged conduct and the grounds pleaded. There must be at least some objective facts and circumstances to support the theory linking the respondents’ action with the Code.

33Having reviewed the voluminous materials the applicant filed and having heard the parties’ submissions, I find that the applicant was unable to highlight any evidence to support his allegations and has no reasonable prospect of demonstrating a link between his allegations and the Code.

Reprisal

34To proceed with his first Application 2010-07674-I, which also alleged reprisal, the applicant must be able to demonstrate a reasonable basis to believe an intention to reprise and a link to the respondent’s alleged actions. The Tribunal in Noble v. York University, 2010 HRTO 878, established that the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights and the following elements must be established:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

Paras. 31-33

35The applicant alleges that the various respondent dentists and doctors provided inadequate or improper care because they were aware of the fact that he had filed complaints with the College and the Board. Other than his allegations, the applicant did not point to any evidence that showed an intention to reprise and a link between the alleged actions and a prior assertion of human rights. In addition, in my view, the applicant’s theory, that he was subject to a reprisal conspiracy amongst six dentists and two doctors, has little plausibility.

36In conclusion, the applicant has not demonstrated that there is a reasonable prospect that any evidence he has, or that is reasonably available to him, can show a link between the respondents’ alleged mistreatment and Code grounds and reprisal.

37Accordingly, the Applications are dismissed.