HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.M.
Applicant
-and-
St. Joseph’s Health Centre
Respondent
DECISION
Adjudicator: Kathleen Martin Date: June 20, 2013 Citation: 2013 HRTO 1088 Indexed as: J.M. v. St. Joseph’s Health Centre
APPEARANCES
J. M., Applicant
Self-represented
St. Joseph’s Health Centre
Michelle Warner, Counsel
Introduction
1This is an Application filed 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 on the basis of disability.
2The Application arises out of the applicant’s interactions with various medical personnel working at St. Joseph’s Health Center (the “Hospital”) or out of its Mobile Crisis Intervention Team (“MCIT”) on three occasions: September 17, 2006, June 7, 2007 and June 1, 2008. In respect of the first date, the applicant alleges that she was discriminated against when she was refused an assessment and threatened with an arrest during an attendance in the emergency department at the Hospital. In respect of the two remaining dates, the applicant alleges that she was discriminated against on the basis of disability when nurses from the Hospital working with the MCIT attended at her home along with the police and refused her request to decline a mental health assessment. Further, the applicant alleges that she complained about these and one additional incident and the Hospital did not get back to her.
3In the Application, the applicant had also alleged that she was discriminated against by a physician working out of the Hospital when he reported her to the Ministry of Transportation (“MTO”) because she was suffering from mental illness. I dismissed the Application against the physician on the basis that it had no reasonable prospect of success (See 2012 HRTO 239). A Request for Reconsideration was filed. By separate decisions issued today, I dismiss the Reconsideration Request as well as a Reconsideration Request of an evidentiary ruling made during the proceeding.
The Proceeding
4A hearing into the allegations that remain outstanding commenced on February 3, 2012 and concluded on October 24, 2012. During the hearing, I heard from the applicant and seven witnesses for the respondents. On consent of the parties, most of the respondent’s witnesses adopted their witness statements as part of their evidence and then provided supplementary evidence including through cross-examination.
Evidentiary Rulings
5In the course of the hearing, there were a number of disputes about evidentiary and production issues most of which were determined in the hearing. I address two of these issues below where I indicated reasons would be provided in the final decision and summarize the parties’ agreement in respect of a third issue that was particularly contentious.
6On February 7, 2012, the applicant sought to rely on the handwritten notes of a police constable (Mr. Bateman) about the incident on June 7, 2007 to “boost” her credibility and demonstrate that the evidence of Ms. Stefan (who had completed her testimony) was contradictory to that recorded by Mr. Bateman. The respondent objected because of timing (its witness had already given her evidence and the contradictions, if any, had not been put to the witness). Notably the applicant had objected earlier to the admission of these same notes during her testimony which I had upheld. I ruled that the notes would not be admitted.
7On consent of the parties, on February 8, 2012, I directed the applicant and respondent to file further submissions on a number of evidentiary issues. The applicant renewed her submissions regarding the notes of Constable Bateman in writing and orally.
8On July 24, 2012, I reiterated that the Constable’s notes would not be admitted. Neither party intended to call Constable Bateman. While the Tribunal has a discretion to admit hearsay evidence, I did not find that the handwritten notes were entirely legible and was persuaded that coming at this late stage, the admission of the notes was prejudicial to the respondent as their witness concerning the incident documented by the constable had already given her evidence.
9A second outstanding evidentiary issue pertains to six emails exchanged between the applicant and various representatives of the Ministry of Transportation at various dates between October 15, 2008 and February 27, 2012. All of the emails relate to the applicant’s licence suspension which followed her hospital attendance on February 2, 2008 and which is the subject matter of the Interim Decision which dismissed the applicant’s allegations against Dr. Rhee. In addition, the two most recent emails relate to the applicant’s follow-up with the Ministry of Transportation about a document marked as an exhibit in the hearing after the applicant received the Tribunal’s Interim Decision dismissing the allegations against Dr. Rhee.
10On May 23, 2012, the applicant filed a request by email seeking to rely on these documents. At the hearing on July 24, 2012, I heard submissions from the parties. The applicant submits that the additional documents will bolster her credibility as the documents support her evidence that Dr. Rhee had not diagnosed her, that he only examined her for two minutes and that a two minute examination is not a proper diagnosis (which she asserts in one of these emails). The applicant suggests that perhaps Ms. Johnson, the patient complaints manager, who testified about the complaints the applicant made did not report everything in her notes. With respect to the late submission of the documents, the applicant states that she did not know that she had these records until recently.
11I have not admitted the records. Even apart from the lateness of the request, I do not see the relevance of the documents to the allegations against the Hospital. In my view, the content of the complaints that the applicant made to the Ministry in the fall of 2008 will not assist me in determining what complaints the applicant made to the Hospital. Further and in any event, I am not convinced that notes made at least eight months after the alleged incident involving Dr. Rhee would be reliable as an indicator of what transpired at the time of the incident.
12Finally, one particularly contentious evidentiary issue was the respondent’s request to rely on various medical records that the applicant objected to; namely third party records that it had obtained from three other hospitals in the Toronto area that had treated the applicant. At the hearing on July 24, 2013, the parties reached an agreement that the records would not be admitted but that the respondent’s witness, Beth Eisen, could refer to the records (to the extent she considered the same) in her testimony. I summarize Ms. Eisen’s evidence below.
Legal Principles
13The relevant provisions of the Code provide as follows:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of …disability.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part
14The applicant bears the burden of proving prima facie discrimination. A prima facie case of discrimination is one which covers the allegations made and which, if they are to be believed, is complete and sufficient to justify a verdict in the applicant’s favour, in the absence of an answer from the respondent. See Ontario (Human Rights Commission) v. Simpsons-Sears, 985 CanLII 18 (S.C.C.), at para. 28.
15In circumstances such as these an applicant must show that she has or was perceived to have a disability within the meaning of the Code; that she was treated adversely or disadvantaged; and that her disability or perception of disability was a factor in the adverse treatment or disadvantage. The onus is on an applicant to prove discrimination on the balance of probabilities.
16In this case, there is no dispute that the applicant has a mental health disability within the meaning of the Code. Thus the issues before me are whether or not the applicant was disadvantaged in the treatment she received and whether the applicant’s disability (or the perception of disability by the staff who interacted with her) was a factor in how the applicant was treated on the three dates in question. In determining these issues, it is not my role to determine if the staff exercised appropriate medical judgment in treating the applicant or to determine if the applicant was treated fairly.
17While I found much of the relevant evidence to be undisputed, where issues of credibility are involved, I have applied the test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, and in particular whether the evidence presented is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and those conditions…”. In addition, I have had regard to all of the documentation submitted in evidence including the hospital records prepared contemporaneously regarding the events in question.
18In my review below, I focus on the relevant evidence pertaining to the three specific dates complained about by the applicant in the Application including her related complaints. The applicant did present some brief evidence about earlier visits to the Hospital where she outlined in a summary way her concerns about these attendances. The applicant characterized this evidence as “context”. I do not find this evidence to be relevant to my assessment of the three incidents in question. There is no suggestion that the applicant’s earlier attendances involved the same staff as the staff involved in those incidences underlying the Application. In light of this and the absence of hearing detailed evidence from the applicant and any other persons involved, I do not find the evidence relevant to whether or not the applicant was discriminated against in the incidents underlying the Application.
19One final point is that the applicant made submissions in this part of the hearing about the allegations that were dismissed against Dr. Rhee. I address the relevance of those submissions in the Reconsideration Decision dated June 20, 2013.
20I now turn to a review of applicant’s allegations.
The Applicant’s Allegations regarding Interactions with Staff on September 17, 2006
21I heard from the applicant as well as three members of the hospital staff (Yvon Morency, Erin Austin and Beth Eisen) about the applicant’s interactions at the Hospital on September 17, 2006. Based on the original Application and the applicant’s final submissions, it is clear that the applicant’s primary concern is that she was not assessed by the emergency physician during her attendance at the Hospital before being discharged.
22According to the applicant, on September 17, 2006, she was arrested by the police under the Mental Health Act (based on the police claiming that she was suicidal) and taken to the Hospital. The applicant went through triage and was then taken to the crisis unit (a unit in the emergency area where patients with mental health issues are assessed). The applicant states that while there, she asked a crisis nurse how long this was going to be and asked if she could leave. The applicant stated that she was not suicidal. The nurse told her that if the applicant wanted to go, she could go. The applicant states that she was then discharged without having an assessment done by the physician or asked any questions about her mental health.
23The applicant does not challenge the Hospital records which reflect that she was there for one hour, 35 minutes, which the applicant says is “a long time”.
24The applicant states that she did not think that she needed treatment and agrees that in discharging her, the Hospital followed her wishes. However, she states that under the Mental Health Act, the Hospital is required to do an assessment of her.
25The applicant states that after being discharged she went to reception asking to see the patient advocate to complain and all of a sudden, some security guards appeared and told her to leave as she had been discharged. The description of what then transpired was confusing. At first, the applicant states that after she left the Hospital she called 911. Then the applicant states that she got on the TTC and called the police. The applicant describes that she was shaking and crying and the police arrived and said that they would have to take her back to the Hospital. The applicant states that she did not know if she was arrested or not by the police, although she relied on some documentation from the police that appears to suggest she was arrested.
26Once back at the hospital, the applicant states that she went through the closed doors and the police officer with her left. There was some discussion between another police officer with the “crisis team”. While the applicant was waiting, the crisis worker who had discharged her earlier came by and stated “now you are going to be arrested” in an “antagonizing way”. An officer with her said, “don’t’ worry she can’t do anything”. The applicant states that she expressed she did not want to be at the Hospital and agrees that she was not suicidal. The applicant states that there was some discussion about taking her to a different hospital but the applicant then asked if she could change her mind and go home instead, which is what transpired. The applicant left with the police officer and crisis team nurse and went home.
27Ms. Austin, a then registered practical nurse, was working in the crisis area of the emergency department on September 17, 2006. Ms Austin states that she has no independent recollection of that day but confirmed that her notes appear on the Psychological/Substance Abuse Disorder form applicable to that date. This form is used to chart the applicant’s time in the crisis unit. Among other things, Ms. Austin’s notes reflect that during the applicant’s first encounter at the Hospital that day, the applicant was repeatedly calling the main emergency and knocking on the EPT [Emergency Psychiatric Team] office door; that the applicant told the crisis worker walking by that she doesn’t want our help and can get help at another hospital; that the emergency doctor was spoken to and that the doctor is aware that the patient wants to and is leaving without being seen.
28Ms. Eisen, a social worker who was working on the Hospital’s Psychiatric Team on September 17^th^, also testified about each of the applicant’s attendances at the Hospital that day. At the time of her first attendance, Ms. Eisen heard the applicant yelling and observed how angry and upset she was while waiting in the crisis area. The applicant was complaining about being in the Hospital and the care provided to her and wanted to be discharged. Ms. Eisen asked the applicant if she was still feeling suicidal and the applicant replied “No and I never was”. Ms. Eisen states that in order to learn more about the applicant’s situation, she reviewed the available records of the applicant’s previous visits to the Hospital as well as records the Hospital had received from three other institutions. Ms. Eisen states that she observed that while the applicant had a history of being brought to different hospitals, the applicant historically denied making suicidal threats, had no history of suicidal attempts and no one in the applicant’s history thought she was at risk for suicide. Ms. Eisen approached the emergency department physician about her interaction with the applicant, her wish to be discharged, her insistence on leaving the hospital, her behaviour in the crisis area and the information learned from her review of the records. In response, the physician advised that the applicant could be allowed to leave if she did not want to be seen. Ms. Eisen communicated to the applicant that she was discharged and she left the hospital.
29Ms. Eisen was also involved when the applicant returned to the Hospital later that day. Ms. Eisen encountered the applicant who was very angry to see her again and stated repeatedly that Ms. Eisen had abused her during the earlier attendance and that she was going to get her “fired”. Ms. Eisen denied threatening the applicant with arrest.
30Mr. Morency, a nurse employed by the Hospital but working with the Mobile Crisis Intervention Team, also testified about the applicant’s second attendance at the Hospital that day. Mr. Morency states that he and the police officer working on the MCIT that day received a call indicating that the applicant had called 911 reporting that she was suicidal. Mr. Morency states that they attended at the Hospital and encountered the applicant in front of the emergency exit. Mr. Morency states that the applicant was loud and agitated. Mr. Morency states that he went into the hospital to see someone in the crisis area and the police officer waited with the applicant. Mr. Morency was told that the applicant would not be seen in emergency again because she had been discharged. The applicant denied having suicidal thoughts and was focussed on expressing anger about the staff in the emergency department and would not answer questions about how she was doing. Mr. Morency offered to take the applicant to a different hospital which she originally was interested in but later she asked to be taken home. The applicant was taken home.
31I do not find that the applicant has established that she has been discriminated against in her interactions with hospital staff on September 17^th^.
32The applicant’s central allegation is that she was not assessed during either of her attendances at the Hospital that day. The applicant submits that there was an obligation to examine her and that the decision to not examine her was because of her mental illness. The applicant suggests that if she had stomach pains she would have been treated. She further submits that the refusal to see her during her second attendance was also adverse treatment which was discriminatory.
33With respect to the applicant’s first attendance, the relevant facts are not in dispute. It is apparent that during her attendance at the Hospital, the applicant’s view was that she was not suicidal, she expressed as much as well as a desire to leave and the Hospital complied with her wishes. The decision to discharge came after communication between Ms. Eisen and the emergency physician. Whether this was proper medical protocol or in accordance with Mental Health Act is not the issue before me – the issue is whether or not she was disadvantaged because of her disability. These facts and in particular the applicant’s express wish to be discharged do not support that the applicant was discriminated against because of disability.
34Similarly, when the applicant returned to the Hospital I also fail to see any discrimination in the Hospital’s failure to assess the applicant. Again, the applicant did not want to be there, expressed an interest in going to another hospital and then ultimately, asked to be taken home which was facilitated by MCIT. Even accepting the evidence that the Hospital declined to admit the applicant a second time, I am not of the view that this conduct is discriminatory particularly where the applicant continued to maintain the view that she did not want to be there.
35Further, I note that the respondents’ witnesses, Ms. Eisen and Ms. Austin, provided evidence that had the applicant wished to stay she would have been assessed. The applicant did not contradict this evidence (she only expressed that she did not know). I have no reason to doubt this evidence.
36Finally, I do not find that the applicant’s claim that she was threatened with arrest is credible. It does not seem reasonable that Ms. Eisen would threaten the applicant with arrest. I note that at this point, the police had brought the applicant back to the Hospital and it is the police who arrest a person and not social workers or nurses. Notably the applicant herself acknowledged that the nurse could not affect the arrest and that her interpretation that it was antagonizing was speculative. Further and in any event, even if such a comment was made, I am not convinced this is discriminatory based on the applicant’s disability.
The Alleged Incident on June 7, 2007
37The applicant’s second allegation relates to a complaint about the conduct of a member of the Mobile Crisis Intervention Team (MCIT) on June 7, 2007. The applicant alleges that the crisis nurse on the MCIT that day forced an assessment on her and subjected her to adverse treatment when she supported the work of the officers present.
38The MCIT is a mental health service that works with the Toronto Police Services to respond to 911 calls from people in the community who are in need of mental health, crisis and victim support. The goal is to work with people in the community to try to avoid hospitalization while still providing assessment and support. The MCIT is a mobile unit insofar as a team of two, consisting of a crisis nurse from the Hospital and a non-uniformed police officer, travel in a police car responding to dispatches from a variety of sources including Toronto Police services’ primary response unit and community agencies.
39The applicant’s complaint about June 7, 2007 relates to the conduct of Connie Stefan, a nurse who was working with the MCIT that day.
40The applicant states that she contacted a police constable with the Community Mobilization Unit. In the course her conversation with the constable, the applicant disclosed that she had chest pains (which the applicant says the constable misunderstood). As a result, the police constable put in a call for an ambulance. The transcript of the constable’s subsequent call for the ambulance reflects that at the same time, the constable asked that the MCIT be sent out as well. The mobile crisis unit attended at the residence of the applicant along with another police car with two officers inside.
41The applicant’s account of what transpired focussed on the constable member associated with the MCIT. The applicant states that when the constable and the nurse arrived at her home, she told the constable that she did not want to talk to him and that she wanted him to leave. The applicant states that she recalls “vaguely” saying that she did not want the nurse there either (referring to Ms. Stefan). The applicant states that she said that you are harassing me and threatening me and that she wanted everybody out. According to the applicant, the constable cautioned her from calling the police (the contact she had originally called) and indicated that she should be calling him. The applicant states that they finally left – this part of the interaction was around 15 to 20 minutes.
42The applicant states that she went out onto the street following them as she had forgotten to get the badge numbers of the officers involved. Initially, the police officers refused to give her their badge numbers and the constable told the applicant that she was causing a disturbance and that he would arrest her. The applicant headed back to her home. There was a further interaction with the constable which did not involve Ms. Stefan even as an observer.
43Following this incident, the applicant filed two complaints in 2007 about the conduct of the police which were submitted in the hearing. In the complaint filed on June 7, 2007, the applicant stated that she was “harassed by police officers” and outlines various concerns. In neither complaint is there any reference to Ms. Stefan’s conduct.
44Ms. Stefan’s version of what transpired was similar to that of the applicant’s version. She states that the MCIT attended based on a report that the applicant was having chest pains, along with another police car containing two officers. On arrival, the police officers approached the door and the applicant conversed with the police. Initially, the applicant would not open the door but with some encouragement did. The applicant denied that she needed assistance, expressed that she felt the police were harassing her and that she wanted them to leave and she would be pressing charges. Ms. Stefan said that she stayed behind the police and did not interact with the applicant.
45Ms. Stefan’s account is confirmed in the MCIT Assessment Form which was prepared on the day in question. The form also documents certain observations of the applicant’s mental status and notes elsewhere that she was unable to assess the applicant (depending on the query on the form). The form indicates that the call was 20 minutes.
46Ms. Stefan agrees that the applicant was cautioned by the constable but characterizes the caution as: if you call the police complaining of chest pain, the police are going to show up on your doorstep.
47In her submissions, the applicant alleges that Ms. Stefan’s conduct discriminated against her because the applicant was “forced” into being assessed notwithstanding her express refusal. Further, the applicant submits that she was discriminated against because Ms. Stefan was supportive of the other officers and watched as she was cautioned despite the fact that the applicant was distressed. This echoes evidence given by the applicant in her testimony where she stated that it was Ms. Stefan’s “body language” that was of concern to her and the fact that if the constable said something, Ms. Stefan sat back as if not heard.
48I do not find that the applicant was discriminated against on the basis of disability in her interactions with Ms. Stefan.
49As a factual matter, I do not find that Ms. Stefan forced an assessment on the applicant. The MCIT was responding to a call reported as having been made by the applicant for their services. In these circumstances, I do not find that the resulting interaction (which in the case of Ms. Stefan involved observing the applicant for approximately 20 minutes and completing a form documenting what observations were made) to be tantamount to forcing an assessment.
50Further, I do not find that Ms. Stefan’s presence while the constable questioned the applicant to be conduct contrary to the Code. Even accepting that Ms. Stefan stood by as the officer “cautioned” the applicant, I do not view this conduct as Ms. Stefan discriminating against the applicant. Ms. Stefan is not alleged to have done the cautioning nor has the applicant explained how Ms. Stefan’s role in being present is conduct prohibited by the Code.
The Incident of June 1, 2008
51The applicant also alleges that she was discriminated against by another crisis nurse, Polly Gove, on June 1, 2008.
52On this date, the applicant states that she called a crisis worker (not with the MCIT) from a pay telephone advising that she was angry and upset, but not suicidal. When heading back to her home, the applicant was stopped by two police cars. In one car was the MCIT unit which included a nurse from the hospital, Ms. Gove. In the interaction that followed, the police officer stated that they had been told by the operator that the applicant wanted to kill people and indicated that he had to ask the applicant some questions. The applicant disputed the reported information. The applicant states that she told Ms. Gove that she did not want to speak to her but Ms. Gove replied that she had to speak to her. The applicant states that when they arrived in the front of her house, the applicant repeated that she wanted them to leave. The applicant stated that she said to the nurse, “go, go” and the nurse responded that “It’s a free country. I can go where I want”. The applicant states that neighbours were out watching and the applicant told the police and nurse that she found this harassing and humiliating and wanted them to go. Ms. Gove kept saying that they should go to a quieter place where they could talk, but the applicant stated that she did not want to. The applicant states that at one point, Ms. Gove raised her hand and came at her and the officer said “whoa, whoa, whoa”.
53The applicant states that she told the responding officers to make note of this but there are no police reports documenting this part of the incident.
54Following the incident, the applicant filed a complaint with the patient complaints manager at the Hospital. The applicant is reported as stating that the police and crisis nurse would not leave when she asked them to and the nurse was condescending and abusive.
55I heard from Ms. Gove, a registered nurse with the MCIT, about her recollection. Ms. Gove testified that the MCIT became involved because the applicant made a call to the crisis line, which in turn called 911 and dispatched the police as the applicant’s call gave rise to concerns about the possibility of suicidal or self-harm behaviour. In cross-examination, Ms. Gove indicated that it’s possible she could have volunteered for the call. She states that the purpose of responding was to ensure for the safety of the applicant by ascertaining the degree of suicide risk.
56Ms. Gove states that on arrival, the applicant was walking rapidly on the street. Ms. Gove stated that she tried to speak to the applicant about her mental health status to ascertain her suicide risk but that the applicant did not want to speak to her. Ms. Gove states that she did ask the applicant to answer just one question – are you suicidal – and the applicant said “no”. During the exchange, the applicant expressed that she had been assaulted by “St. Joe’s staff”, that she has a court case with the police and that the crisis staff are incompetent because she was not suicidal but just upset. The police officers engaged the applicant in conversation and during this encounter the applicant denied being suicidal and focussed on how the MCIT were embarrassing her in public although she refused to move to a private area. Ms. Gove states that the applicant became more agitated and provocative with the police and at that point, she stood back. She states that she needed to be respectful of her space as she said that “we” were embarrassing her. She denies raising her hand or needing to be restrained.
57Ms. Gove states that her goal in these situations is to decrease “agitative behaviour” and work to deescalate the situation although she does not always succeed. Ms. Gove states that in these situations, a person may change their mind and that usually she and the officer wait for a resolution. Ms. Gove states that ideally she would have liked a more in-depth talk with the applicant. She agrees that the applicant did not benefit from the interaction. Ms. Gove states that the entire conversation was 10 to 15 minutes although she spent additional time completing the MCIT form.
58Ms. Gove’s observations are documented on the MCIT form which was prepared at the time.
59In her submissions, the applicant contends that she was discriminated against in her interactions with Ms. Gove because the nurse forced an assessment on her and subjected her to harassing behaviour during the visit when she lunged forward with her hand in the air and attempted to strike the applicant.
60I do not find that the applicant has met her burden of establishing that she was discriminated against in her interactions with Ms. Gove.
61Considering first the allegation that the applicant was forced to have an assessment, I do not find that the facts support such a conclusion. Most of the relevant facts are not in dispute. The MCIT became involved because of the applicant’s actions (the applicant had called a crisis worker). The MCIT attended, made inquiries of the applicant, the applicant refused to answer and refused to move to a quieter place. I accept that Ms. Gove tried to engage with the applicant, the applicant told her she was not suicidal (given that this is consistent with the applicant’s view) and that a MCIT form was completed where she documented certain observations about the applicant. However, given the context and the stated purpose of the call (to ensure the safety of the applicant by ascertaining the degree of suicide risk) which I accept, I do not find the exchange even if it lasted 20 minutes (which in the circumstances does not seem unreasonable) to constitute a “forced” assessment.
62While I appreciate the applicant’s concern about the public setting in which the interaction occurred, the MCIT did offer to go to a more private area. Further, even if the interaction was longer than the applicant wanted it to be and upsetting to her, the applicant has not convinced me that this treatment is discriminatory based on disability. I also heard no evidence from which I could reasonably infer that the applicant was treated any differently from other people who have been recipients of the care or involvement of the MCIT.
63The applicant also suggested that at one point when she asked those present to leave, Ms. Gove responded that it was a free country. I am not convinced this remark was made given that it appears that it was raised for the first time in the hearing which occurred almost four years after the alleged incident (having not been complained about in the documented complaint to the Hospital in 2008 nor referenced in the Application). However, in any event, I am not convinced that even if made, a remark of this nature is indicative of discrimination. While the applicant characterized it as being antagonistic and disrespectful, she did not explain how such a comment, even if made, is discriminatory based on disability.
64I also do not find that the applicant has established the allegation that Ms. Gove attempted to strike her and had to be restrained. I do not find it reasonable and probable that a nurse who is attending on a crisis call with an objective to deescalate a situation would engage in this type of behaviour in a public setting with police and various neighbours around, none of whom were called as witnesses. Further, I am troubled by the applicant’s delay in making the allegation. While the applicant complained about the June attendance by the MCIT within three days of its occurrence, the “attempted striking” allegation which I view as serious was only made several months later at a meeting, notwithstanding that she had contact with not only Ms. Johnson, the manager of patient relations but also Heather Hickey, the manager of the nursing staff in the MCIT before the meeting. In light of the foregoing, and given the denial of Ms. Gove, I am not convinced that the applicant has met her onus in establishing this allegation. Further, and in any event, while an attempted striking is undoubtedly inappropriate behaviour, the applicant did not explain how or why even if it did occur, this conduct would be discriminatory based on her disability.
Did the Hospital’s Response to the applicant’s internal complaints violate the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?
65The applicant also alleges that the respondent failed to investigate and respond to three complaints she made to about the incidents in the Application, which the applicant attributes to her being mentally ill and the fact that her concerns were discredited.
66The applicant gave only limited evidence about the complaints she made. Instead, the evidence provided in the hearing about the applicant’s internal complaints and the Hospital’s response to them was given by Sally Anne Johnson, manager of patient relations, and to a lesser degree, Heather Hickey, who gave specific evidence about the response to the applicant’s concerns about the MCIT staff. Ms. Johnson adopted as her evidence in chief, her written documentation of the complaints she received orally from the applicant and the subsequent steps she took to address the complaints. Ms. Johnson’s evidence was supplemented with some additional evidence including through cross-examination.
67The basic chronology of what transpired was not disputed and I accept the following evidence.
68Ms. Johnson described her role as investigating the applicant’s concerns as a complaint and not a human rights issue. She states that her role is to take a patient’s complaint forward to staff who are able to resolve the issues.
69According to Ms. Johnson, the applicant made three separate complaints although it is apparent that there is some overlap in the issues raised.
70On September 19, 2006, the applicant complained generally about the care she received on September 17, 2006 including the absence of an assessment, although the allegations went beyond the applicant’s allegations in the proceeding. In the complaint, the applicant stated that the “staff can’t use threats against patients (such as sedating and restraining)” and that this is against human rights. In addition, the applicant is reported as stating that she would be making a human rights complaint without providing any additional details of content beyond the foregoing reference. The material reflects that Ms. Johnson followed up with various hospital staff including the emergency physician and Ms. Eisen after which she tried unsuccessfully to reach the applicant by telephone and then scheduled a meeting inviting the applicant to attend. The applicant did not attend and the matter was then closed.
71On March 11, 2008, the applicant made a second complaint about her attendance at the Hospital in February 2008 (which is the subject matter of the Interim Decision dismissing the allegations against Dr. Rhee) as well as raising a concern about her treatment by emergency and crisis staff. In the course of doing so, the applicant alleged that she had not heard back from Ms. Johnson in the previous complaint. Ms. Johnson explained that she had been unable to get in touch with the applicant by telephone and that she had sent a letter, which the applicant denied having received. Ms. Johnson and the applicant discussed how Ms. Johnson could follow up with the applicant and the call concluded with the applicant advising Ms. Johnson to not talk to anyone as the applicant’s information has been made public too often and “this is a human rights complaint now and…[she] would be hearing from human rights”.
72Notwithstanding the foregoing, Ms. Johnson did make inquiries of certain staff and asked them to follow up. The applicant contacted Ms. Johnson several weeks later asking why she had not heard back. When Ms. Johnson reminded the applicant that the applicant had indicated that she should not talk to anyone, the applicant denied that she had said this and that there had been a telephone call. The applicant raised a number of concerns including new issues and in the course of Ms. Johnson explaining what she had done and that the issues had been addressed, the applicant hung up on her. The applicant made no mention of human rights in this conversation. The applicant contacted the CEO’s office a few weeks later and was put through to Ms. Johnson but left no message.
73A third complaint was generated by the applicant on June 4, 2008. As initially framed, the complaint was about the incident on June 1, 2008. The applicant indicated that she did not want the crisis nurse coming to her house again. Ms. Johnson followed up with Ms. Hickey, the manager of the crisis staff and others and Ms. Gove provided her recollections. Ms. Johnson then attempted to contact the applicant at the number the applicant had left on June 13, 2008 and left a message. It was not returned at that time.
74Upon her return from a vacation on September 12, 2008, Ms. Johnson learned that the applicant had contacted Ms. Hickey, the manager of the nursing staff on the MCIT to complain about June 1, 2008 incident as well as the Premier’s office. On October 2, 2008, a meeting was scheduled with the applicant, Ms. Hickey and Ms. Hess. The concerns included but went beyond the issues concerning the MCIT nurse. The applicant complained about earlier issues including her licence being suspended after a visit in emergency (the applicant asked that the Hospital address the practice of physicians of just checking a box about a person’s health); and not being assessed in emergency. The applicant also identified what was referenced as a new allegation regarding the MCIT nurse having attempted to strike her. On the former issue involving the licence suspension, Ms. Johnson agreed to follow up with the chief of emergency and the chief of staff. On the MCIT issue, Ms. Hickey confirmed that the MCIT nurse would not attend at the applicant’s home and that she will follow up on the new allegation of attempting to strike her. Further, Ms. Johnson stated that she would provide an update to the Premier’s office summarizing the meeting.
75Ms. Johnson’s notes reflect that she did follow up as represented with the Premier’s office and the respective chiefs of emergency and staff. The chief of emergency is reported as having stated that the applicant can take the issue regarding the licence to the College or human rights, that the chief stands by the physician practice of reporting and if the patient has threatened suicide that many times then the chief feels they would need to report her.
76Ms. Johnson stated that she remained willing and open to deal with the applicant’s concerns if the applicant contacted her again.
77In assessing whether the Hospital’s actions violated the Code, I have considered the applicant’s submissions, including her reliance on Wall v. Lippé Group, 2008 HRTO 50 (“Wall”). In Wall, a Board of Inquiry identified a number of criteria for assessing the sufficiency of a respondent’s efforts to address allegations of discrimination and harassment including that the response be prompt, there be corporate awareness that the conduct complained of is prohibited, the matter be dealt with seriously, there be a complaint mechanism in place, the respondent act so as to provide a healthy environment and the respondent communicate its actions to the complainant.
78However, as stated in Naidu v. Whitby Mental Health Centre, 2011 HRTO 1279 at para. 191, the obligation to take reasonable steps to respond to a complaint of discrimination or harassment under the Code requires two things: first, that a complaint or concern be communicated by the applicant or otherwise known to the respondent in a manner sufficient to engage this obligation; and second, that the substance of the complaint or concern be about some potential violation of the Code. Further, where a duty to investigate is triggered, I am mindful that a respondent’s conduct is to be assessed against a standard of reasonableness and not perfection. See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 at para 60.
79In assessing what occurred in this case, I am not convinced that the applicant expressly raised human rights allegations about each of her concerns or in such a manner that it was clear that she was asking the respondent to investigate allegations of discrimination. In any event, even assuming that the respondent’s obligation was triggered in this case, in all of the circumstances, I find that the respondent conduct was reasonable.
80While the applicant raised a number of complaints about her treatment as a patient in the Hospital and as a recipient of services of the MCIT, the connection between her complaints and the Code was vaguely drawn. For example, in her first complaint, while suggesting she would be filing a human rights complaint, it is unclear if the applicant was actually raising this in connection with human rights issues given the applicant appeared to link her concerns at the time to an allegation about threats of sedation and restraining (an allegation that is, for example, not part of this Application). Similarly in the applicant’s second complaint, the only reference to human rights came at the end of the applicant’s telephone call with Ms. Johnson when she expressed that she did not want Ms. Johnson talking to anyone and that this is a human rights complaint now and Ms. Johnson would be hearing from human rights. Likewise, in addressing the licence suspension issue, Ms. Johnson’s documentation of the complaint reports the applicant as having submitted a complaint to the CPSO and that she would follow up with “human rights”. I am not satisfied that these vague references are sufficient to trigger an obligation to investigate the complaints being made by the applicant as potential Code violations.
81Further, and in any event, I find that the respondent did take reasonable steps to address the applicant’s concerns. In respect of the first two complaints, the respondent was taking steps to follow up on her issues but in each instance, the process was concluded prematurely because of the applicant’s actions or inactions. In the first complaint, the respondent was unable to reach the applicant at the telephone number on file and when a meeting was scheduled, the applicant did not attend. In the case of the second complaint, the file was closed when the applicant hung up on Ms. Johnson and did not follow up again with her. While the applicant is reported as having contacted a different manager, the content of the conversation reported to Ms. Johnson includes the applicant having raised her voice, talking over the staff person and giving her ultimatums as well as declining to come in to discuss her concerns. In these circumstances, I do not find the lack of follow-up by Ms. Johnson to be unreasonable.
82In the case of the third complaint, various representatives of the respondent met with the applicant, reviewed her concerns and identified what steps would be taken. The respondent did take steps to follow-up with most of the applicant’s concerns. In the case of the applicant’s central allegation about the MCIT staff, it was confirmed that the staff would not go to her home thus resolving the issue. In fact, an email was sent to staff on September 5, 2008 confirming this protocol. While the applicant made submissions about the sufficiency of the email direction, the applicant testified that she never had any further interaction from the MCIT from when she complained until the date that she testified - thus the direction appears to have addressed the applicant’s concern. In the case of the emergency room issues (of not being assessed) and the licence suspension issue, there was a commitment to follow up with staff about the applicant’s concerns, which is reported as having taken place. As well, Ms. Johnson agreed to call the Premier’s office and report on the meeting, which she did. I heard no evidence that the applicant expected to hear back from the respondent in any other manner.
83The applicant correctly submits that there was not an independent “investigation” of each allegation by Ms. Johnson as she viewed her role as bringing forward the concerns to those who could resolve the concerns. Moreover, on the issues that were directed to others, for example the follow-up to the chief of emergency and the chief of staff, there was no report back to the applicant. However, neither was any evidence presented by the applicant that she expected any different follow-up. Further, I accept that Ms. Johnson remained willing and open to deal with the applicant’s concerns should she contact her again.
84In summary, in this case, where the connection between the applicant’s complaints and the Code was tenuous at best even when initially raised, I am not satisfied that the obligation to take reasonable steps to investigate was triggered, but even if it was, I find that the steps taken were reasonable.
85For all of the above reasons, I find that there has been no violation of the Code.
86The Application is dismissed.
Dated at Toronto, this 20^th^ day of June, 2013.
“Signed By”
Kathleen Martin
Vice-chair