HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Victoria Akinretoye

Applicant

-and-

PT Healthcare Solutions and Tara Church

Respondents

DECISION

Adjudicator: Brian Cook

Date: October 4, 2013

Citation: 2013 HRTO 1679

Indexed as: Akinretoye v. PT Healthcare Solutions

APPEARANCES

Victoria Akinretoye, Applicant

Self-represented

PT Healthcare Solutions and Tara Church, Respondents

Jane Gooding, 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 because of race and colour. The applicant self-identifies as a Black woman. She attended for physiotherapy sessions at PT Healthcare Solutions from 2009 to February 2012. The personal respondent is a physiotherapist who works at PT Healthcare Solutions. The applicant alleges that on January 20, 2012, the personal respondent made racist comments to her.

2The Application was heard on August 15, 2013. I heard testimony from the applicant and the personal respondent. The respondents had identified three additional witnesses who were available to testify. After hearing the testimony of the applicant and the personal respondent I confirmed with the applicant that she was not expecting that any of the additional potential witnesses were going to provide evidence to support her case. I determined that it was not necessary to hear from the additional witnesses and I invited submissions from the applicant and the respondents’ counsel about the merits of the Application.

Background

3The applicant was referred for physiotherapy treatment by her family doctor in 2009. She subsequently regularly attended the corporate respondent’s physiotherapy clinic where the personal respondent is employed as a registered physiotherapist. Most of the treatments were administered by physiotherapy assistants. The treatments were covered by OHIP.

4At the time of the first appointment on April 24, 2009, the applicant's low back and knees were assessed. The applicant testified that she was also experiencing neck symptoms at that time. In 2009 the applicant attended for almost 60 treatments. Treatment continued in 2010 and 2011 and the applicant usually attended for one to three visits per month. The treatment was usually administered by therapists other than the personal respondent although the personal respondent provided treatment from time to time.

5According to the applicant, the events that led up to the alleged discrimination started in December 2011. She had an appointment booked for December 14, 2011 that she had to cancel because of a death in her family. She testified that she had difficulty getting an alternate appointment date booked and did not get in for a treatment until January 9, 2012. In the interim, she had a number of conversations with the receptionist (Sarah) and with one of the assistant physiotherapists (Susan), and also spoke to the personal respondent. One of the issues that arose in these conversations was that the applicant needed to be re-assessed by a physiotherapist. The applicant understood that this involved a fee that she would have to pay. She did not think that she should have to pay a fee.

6The personal respondent testified that there is an initial assessment fee of $55 that is not covered by OHIP. She testified that a fee is not charged for a re-assessment. She agreed with the applicant that an office guideline states that a patient who has not been treated for more than four weeks may have to have an assessment or re-assessment and that a fee may be charged. The personal respondent testified that the applicant was not told that she would have to pay a fee. She indicated that in this case a re-assessment of the applicant’s knee and low back was required because the applicant had been receiving treatment for some time without a full assessment. In addition, the applicant had indicated that she required treatment for her neck which had never been assessed. In this case there may have been some confusion about whether a new assessment of the applicant's neck was required or whether only a re-assessment was required.

7The applicant testified that she talked with the personal respondent on January 3, 2012, and that the personal respondent told her that an assessment and/or re-assessment was required and that the applicant would have to pay a fee. The personal respondent testified that she did not tell the applicant that a fee was required. The applicant testified that she and the personal respondent got into an argument about the fee issue. She testified that the personal respondent hung up on her.

8The personal respondent could not recall the details of the January 3 conversation but testified that she would not have hung up on the applicant. The personal respondent wrote a clinical note in the applicant’s clinic chart that is dated January 3, 2012, and it documents a discussion with the applicant about the need for a re-assessment of the “neck and back”. It refers to a note that indicated that the applicant had expressed concern about a fee but the clinical note does not indicate whether or not a fee was required.

9In her testimony, the applicant agreed that none of the conversations concerning her problems getting an appointment scheduled, whether an assessment or re-assessment was required, and whether she would have to pay a fee had anything to do with her race or colour. She also agreed that she was not in fact required to pay a fee.

10The applicant attended the clinic on January 9, 2012 and was assessed by the personal respondent at that time. The applicant testified that the personal respondent asked her a number of questions that the applicant felt were personal in nature, such as whether she was working, where she lived, and about un-related health issues. She testified that the personal respondent also indicated that she would like to get the results of a neck x-ray from the applicant’s family doctor. One of the questions that the personal respondent asked her concerned how long she had been having neck symptoms. At the time she could not remember but said that it was at least 18 months.

11When she got home, the applicant checked her records and realized that she had been suffering from neck pain since 2009. She also found a phone message from her family doctor indicating that the clinic had called his office about the neck x-ray. The applicant testified that she felt that it was inappropriate for the clinic to call her family doctor about the x-ray since she had not given express consent for them to do so.

12The applicant attended the clinic on January 19, 2012 and again saw the personal respondent. She testified that she told the personal respondent that she objected to some of the personal information that had been recorded at the time of the previous assessment and that the personal respondent struck out the information that had been recorded in the applicant's chart.

13The applicant testified that as she was leaving the clinic after this appointment she overheard the personal respondent say to the receptionist that the applicant was a difficult person.

14The personal respondent agreed that she might have been somewhat frustrated by the end of the January 19 appointment because the time had been taken up with discussion and there had not been enough time to do the neck assessment.

15The parties agree that the applicant called the clinic on January 20 and left a message for the personal respondent to call her and that the personal respondent called the applicant. The applicant testified that the purpose of the call was that she wanted to tell the personal respondent that if the personal respondent had any issues about her, the personal respondent should tell the applicant directly, and not talk about her with the receptionist. The personal respondent testified that she understood that the applicant wanted to clarify the date of the onset of her neck symptoms.

16In the Application, the applicant stated the following about the conversation on January 20:

I said to Tara that if she has anything about me, she should say it right now. Tara responded to me said do not come her anymore and she hates black people, and black people always cause problems. I said to Tara are you a racist, Tara responded yes I am racist and people like you with different skin color I hate. Tara hung up the phone.

17The applicant testified that the conversation on January 20 did not last long. She testified that she told the personal respondent to speak directly to her if there was a problem. She testified that the information in the Application about the conversation is correct. In particular, she testified that the personal respondent said that she hates black people and that when the applicant asked if the personal respondent was a racist, the personal respondent said that she was.

18The personal respondent denies saying these things. She testified that she was shocked by the allegations and was very upset about the Application and the things that she is alleged to have said. She also denied that she told the applicant that she could not come back to the clinic.

19The personal respondent testified that she could not recall the exact details of the conversation on January 20, 2012, but recalled that the applicant clarified that her neck symptoms started in 2009. The personal respondent referred to a clinical note dated January 20, 2012 that substantiates that the applicant called to clarify that her neck symptoms started in 2009.

20The applicant later called again and made an appointment for treatment on February 2, 2012. She testified that she did not see the personal respondent at that time. She did not return for further treatment after that.

21The applicant filed this Application on April 30, 2012. She testified that the only person she spoke to about what happened was her cousin. She did not consult with anyone about the Application. She did not call the clinic to complain about the alleged comments.

Analysis and findings

22The applicant alleges discrimination in respect of services contrary to section 1 of the Code which provides:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

23The specific allegation is that the personal respondent made racist comments to the applicant in regard to physiotherapy treatments. If the personal respondent said the things that the applicant alleges she said, the applicant’s Code-protected rights under section 1 were infringed. The personal respondent is providing a service within the meaning of section 1 and the alleged racist comments would constitute discrimination on the basis of race or colour.

24The Supreme Court of Canada has stated that cases like this are decided on a balance of probabilities and that this requires evidence that is “sufficiently clear, convincing and cogent”: F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008 SCC 53.

25The question that I must decide is therefore whether the applicant has provided evidence that is sufficiently clear, convincing and cogent to establish that it is more probable than not that the things she alleges were said by the personal respondent were in fact said.

26This case comes down to a telephone conversation between the applicant and the personal respondent. The conversation was not witnessed or recorded so there is no way to know what was actually said. For the applicant to succeed, I must therefore be able to accept that her testimony is credible and reliable. This requires an assessment of her evidence and also an assessment of the credibility and reliability of the personal respondent. This can include an assessment of candor, evasiveness, and the capacity of each witness to perceive and remember: Loomba v. Home Depot Canada, 2010 HRTO 1434.

27In cases involving a determination of credibility, the Tribunal has also relied on the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A.):

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard as well as other factors, combine to produce what is credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

28In considering the testimony of the applicant and the respondent in these terms, I have concluded that the applicant's evidence about the January 20 telephone conversation with the respondent is not in harmony with the preponderance of probabilities.

29In circumstances where such overtly racist statements are made I would expect that the maker of the statement would have a clear recollection of the statement and a clear memory of the context of the entire conversation in which the statements were made. While the maker of the statement may deny the allegations of discrimination or that the statement was made, the individual could also be expected to have a clear account of the rest of the conversation. In this case, the personal respondent testified that she could not really recall the specifics of the conversation other than that she thought it was about the history of the applicant's neck condition. Her testimony is entirely consistent with a busy physiotherapist who has a routine conversation with a patient on the telephone and who is not required to try to better recall the conversation until allegations about the conversation are raised some months later. Her testimony is also consistent with the clinical notes that were made at the time. I found that the personal respondent provided her evidence in a straightforward manner without exaggeration or embellishment.

30In considering the applicant’s evidence and the manner in which it was provided, I did not detect any significant discrepancies. She too provided her account of what happened during the January 20^th^ conversation in a straightforward manner.

31As noted in submissions, the applicant’s evidence about the exact sequence of the events leading up to the January 20 conversation was not completely straightforward. However, I found that to the extent there were inconsistencies, they were relatively minor and attributable to the passage of time. For example, counsel for the respondent noted that the applicant had not been clear about whether one of the calls to the clinic about re-scheduling her treatment occurred on December 27 or December 28, 2011. However, it does not appear that anything significant turns on this.

32As noted above, an often referred to test of credibility was set out in Faryna v. Chorny, which instructs the decision-maker to consider whether the witness’ testimony is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

33The allegation here is that a physiotherapist made racist comments to a patient and then admitted to being a racist. Based on the applicant's testimony, this alleged statement came “out of the blue” as the applicant does not suggest that her interactions with the personal respondent ever suggested to her that she was being treated differently because of race or colour. She testified that she never had any sense that she was being treated differently on the basis of her race or colour during the more than three years that she was treated at the clinic.

34It appears that the context to the January 20^th^ conversation was the applicant's frustrations about getting an appointment re-scheduled, and some level of conflict with the personal respondent about scheduling of appointments, what should be recorded in the chart, and apparently most significantly, whether an assessment or re-assessment fee was required. However, the applicant agrees that none of these issues had anything to do with her race or colour or any other Code-related ground and that she never thought that she was being treated differently in respect to any of these issues on the basis of a Code-protected ground.

35The allegations of racism in this case are only that the comments were made. The allegations are not supported by any other evidence and so there is no contextual or circumstantial evidence that would assist the applicant in showing that it is more probable than not that the comments were made.

36For a regulated health care professional to make the comments that are alleged in this case would be extremely risky. In addition to professional discipline, legal proceedings such as this Application, such comments would be directly and indirectly very bad for business.

37It is however, obviously possible that a physiotherapist could treat a patient differently because of race or colour. It is also possible, but much less likely, that a physiotherapist would expressly tell the patient that the reason for the differential treatment was the patient’s race or colour. It is also possible, but even less likely, that the physiotherapist would then candidly admit to being a racist.

38The applicant did not identify any circumstantial or contextual evidence to support that the comments were made.

39In contrast, in my view, the circumstantial and contextual evidence that is available supports the conclusion that it is more probable than not that the alleged comments were not made. In this respect I have considered in particular the fact that on the applicant’s account the alleged comments came “out of the blue” and that there was nothing in her interactions with the personal respondent prior to the conversation that suggested that the personal respondent harboured such opinions or beliefs. As well, it appears that when there were issues that arose, such as the recording of personal information, the personal respondent readily accepted the applicant’s concerns. Similarly, although there was an issue about whether a fee would be required for an assessment or re-assessment, the applicant was not in fact required to pay a fee.

40In considering the available evidence I conclude that the allegations are improbable and not in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

41For these reasons, I find that the applicant has not established that the statements that she alleges were said by the personal respondent were in fact said and the Application is dismissed.