HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Theresa Navikevicius
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Ontario Medical Association
Respondents
DECISION
Adjudicator: Maureen Doyle
Indexed as: Navikevicius v. Ontario (Health)
APPEARANCES
Theresa Navikevicius, Applicant Self-Represented
Her Majesty the Queen in Right of Ontario as represented by the Minister of Health, Respondent Beth Beattie, Counsel
Ontario Medical Association, Respondent Robert Lee, Counsel
Introduction
1This is an Application filed on August 10, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to services because of race, colour, ancestry, place of origin, citizenship, ethnic origin and disability.
2Following a review of the Application, a Case Assessment Direction ("CAD") was issued on September 19, 2012, directing that a summary hearing take place. The summary hearing was held by conference call on March 11, 2013.
DECISION
3For the reasons that follow, I find that this matter has no reasonable prospect of success and I am dismissing this Application.
ANALYSIS
Summary Hearings
4In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal's Rules of Procedure:
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.
5In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be 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.
Application to the Facts
6Based on all of the material filed by the applicant, and her submissions at the summary hearing, it is apparent that she experienced problems in obtaining the services of a family doctor and that the Application is premised on the difficulties she experienced.
7In her Application, the applicant identifies herself as "White northern european" and alleges that she does not have the same access to health care services and programs as do immigrants. With respect to the grounds of disability, she alleges that she would require more patient-doctor time, for which a doctor may not feel fully compensated. In particular, she alleges that she has had difficulty in finding a family doctor and contrasts this with the situation in the past, when she had no such difficulties. She alleges that in order to be accepted as a patient she is required to provide mental and physical medical information and doctors are permitted to choose whether to accept her as a patient. She alleges that immigrants do not have to provide such information prior to receiving health care services. She alleges that more services are available to immigrants than are available to her, stating that:
...doctors are sent to schools for children, women only services, medical buses that travel to immigrant employee workplaces, taxis that ferry people to doctors, assistance in finding a doctor that has cultural sensitivity, health centres based on ethnicity, medical services for refugees, reduced hospital fees for those not entitled to ohip [sic], top ups for nursing home payments and free services that are not available to me because they were delisted years ago.
8She asserts that "to have people come to this country and advocate for these services, while I pay for them and do without is the worst form of racism. It is enslavement".
9The applicant included various documents and articles in support of her Application, including an internet article regarding the Ministry of Health and Long Term Care's ("MOHLTC") introduction of a "multilingual website for better treatment", a newspaper article titled "In-school clinic gives families easy access to doctor" regarding a paediatric clinic at a middle school, an internet article titled "Charge senior citizen immigrants for health care: Lawyer" stating estimated health care costs for seniors and quoting an individual who favours having senior citizen immigrants pay $150,000.00 "up front" to defray health care costs, two newspaper articles regarding cancer survival rates and other health care statistics in the Hamilton area.
10The applicant also included with her Application a copy of two letters. The first is a letter she wrote to MOHLTC dated May 26, 2012, in which she complained about her difficulties in finding a family doctor. In this letter, she alleged that from 2008 to 2010 she was asked to go to doctors' offices to complete a form on which she would be required to provide her name, address, phone number and Ontario Health Insurance Plan (OHIP) number, and she asserted that she did not feel she should have to give this information to someone who may never become her doctor. She also alleged in this letter that she was advised she would have to go to the doctor's office during working hours to meet with the doctor, but she could not afford to lose pay to attend at a doctor's office. She then relates complaints regarding the competence and billing practices of the doctors from whom she received care following 2010. She also alleged that in 2012, when seeking a new family doctor, she refused to answer questions about her health and date of birth over the phone in order to get an appointment, and that she was subsequently advised that the doctor could not accept her as a patient.
11The second letter the applicant included with her Application is a letter from the MOHLTC dated June 14, 2012 advising her of a service it provides to "connect" individuals with family health care providers as well as an information service it provides regarding family doctors who may be accepting new patients and regarding other primary care resources.
12At the summary hearing, the applicant submitted that community health care is provided for immigrants and that they have access to culturally sensitive service, preventative services such as PAP smears, breast screening, and delisted services such as physiotherapy, in addition to assistance with such things as completing forms for social assistance. She alleged that the immigrants using these services do not have to provide health information to qualify for services, but when she, as an "old Canadian", seeks health services at a doctor's office, she must provide information and wait to see if she is accepted as a patient. She submitted that to be accepted as a patient, she would have to go to a doctor's office during business hours, complete a form and provide her name, address, date of birth, complete medical history, and state the reason why she has no family doctor. She asserted that she would then have to return for an interview with the doctor and that prior to any decision being made about accepting her as a patient, her medical information would be discussed by a "team", even though she is not a patient. She submitted that "new Canadians are not cherry picked like old Canadians".
13She alleged that the number of doctors per Ontarian has not changed since 1986, but that now, since the introduction of Family Health Care teams, she has greater difficulty in accessing a family doctor and she blames the introduction of those teams for her difficulty. She also complained that doctors are paid more if they have more patients on their roster. She submitted that doctors used to work "all different hours of the day" and provided coverage for each other on weekends and time off.
14She submitted that immigrants take "more in taxes than they contribute". She submitted that she pays too much for services she cannot access and points to "multiculturalism" as a problem, contrasting it with the requirement to assimilate which she asserts her parents faced as immigrants.
15She submitted that the Ontario Medical Association (OMA) negotiated with the government in order to permit doctors to "cherry pick" patients.
16The respondent Ministry of Health (MOH) submitted that it is not a provider of medical services and it does not control or govern in any way, individual doctor-patient relationships.
17The MOH submitted that the applicant has not established that the MOH has denied her a service it provides to others. It submitted that she has not established that her inability to find the family physician of her choice is the result of any discriminatory conduct by the MOH. It further submitted that the MOH has not prevented her from receiving any medically necessary services available to all Ontario residents at hospital emergency departments, regardless of race, colour, ancestry, place of origin, citizenship, ethnic origin and disability. It submitted that her allegations regarding difficulty finding a family physician appear to be based on convenience rather than any denial of service by the MOH.
18The MOH further submitted that the applicant has not made any link between any alleged actions of the respondents and the Code-protected grounds she cites, and therefore, the Application should be dismissed.
19The OMA echoed the submissions of the MOH. Additionally it submitted that it is a voluntary organization and it does not discipline doctors. It submitted that the applicant has alleged, without providing any facts, that the OMA was somehow involved with negotiations with the government regarding "cherry picking" of patients. It submitted that there is no factual basis upon which to conclude that the OMA has discriminated against her. It submitted that the OMA has no control or oversight of the provision of services by doctors.
20By way of Reply, the applicant submitted that she should not have to go to the emergency department of a hospital for medical service, as she is more likely to "catch disease" there than at a private doctor's office.
21The power of the Tribunal is limited to dealing with applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties.
22The CAD issued in this matter indicated that at the summary hearing the applicant was to make argument about why the Application should not be dismissed as having no reasonable prospect of success and point to the evidence upon which she would prove a link between the respondents' actions and the grounds cited. In the course of the summary hearing, the applicant was given the opportunity to provide this explanation but was unable to do so.
23The applicant has not disputed that the MOH is not a provider of physician services in Ontario. The applicant has made bald assertions, but she has not pointed to evidence upon which she could rely to establish that the MOH has been responsible for her difficulties in finding a family doctor or how it is responsible for any discrimination against her in the provision of services contrary to the Code. If she has experienced difficulty due to a requirement to provide certain information and attend at a doctor's office during business hours, she has not established how this is due to the actions of the MOH.
24Similarly, the applicant has not disputed that the OMA is not responsible for the provision of physician services in Ontario, nor has she disputed that it has no disciplinary or oversight role with respect to physicians. She has not pointed to evidence upon which she could rely to establish that the OMA has been responsible for any discrimination contrary to the Code she alleges she encountered in her difficulties in finding a family doctor. She has made a bald assertion that the OMA has negotiated with the government in order to allow doctors to "cherry pick", but she has pointed to no evidence upon which she would be able to establish either that this occurred or even if it did, that the OMA was responsible for any discrimination contrary to the Code she alleges she encountered in her difficulties in finding a family doctor.
25The applicant has also alleged that immigrants receive more services than she does, for example help in completing application forms for social assistance, but she has not pointed to evidence she would rely upon to establish that the respondents have denied her services. Without such evidence, there is no reasonable prospect of success with respect to this allegation.
26For all of the reasons above, I find that there is no reasonable prospect that the Application will succeed and it is dismissed.
Dated at Toronto, this 6th day of June, 2013.
"Signed by"
Maureen Doyle
Vice-chair