He v. Sergeant Gowan, 2013 HRTO 2081

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yunhong He Applicant

-and-

Sergeant Gowan Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: December 17, 2013

Citation: 2013 HRTO 2081

Indexed as: He v. Sergeant Gowan

APPEARANCES

Yunhoung He, Applicant Self-represented

Sergeant Gowan, Respondent David A. Gourlay, Counsel

Introduction

1By Application dated January 28, 2013, the applicant alleged that the respondent discriminated against her mother because of disability and reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant claimed that the respondent discriminated against her mother by failing to take action in relation to a complaint letter written by her mother. The applicant’s mother was a resident in a long-term care home at the time of the incidents alleged in the Application. The respondent is a Sergeant with Toronto Police Services. The applicant claimed that the police failed to take action on her mother’s complaint because she is disabled. The applicant’s mother also filed an Application raising the same set of allegations. Her mother’s Application has been assigned Tribunal File number 2013-13540-1.

2By Case Assessment Direction (“CAD”) dated July 5, 2013, the Tribunal directed that a summary hearing be held to determine whether the two Applications should be dismissed as having no reasonable prospect of success. The Tribunal directed the parties to make submissions on whether the allegations set out in the Applications, if accepted as true, can reasonably be considered to constitute a violation of the Code.

3It is clear that the applicant and her mother have had a history of difficulties with the long-term care home in which the applicant’s mother is, or was, a resident. However, for the reasons set out below, I find that there is no reasonable prospect that the allegations set out in the Application can reasonably be found to amount to a violation of the Code by the respondent.

Reasonable Prospect of success

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27 and Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 10. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary.

7However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that he or she has experienced discrimination or reprisal under the Code.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination or reprisal under the Code.

9Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

10As noted above, the applicant’s mother was a resident of a long-term care home at the time of the incidents alleged in the Application. The applicant’s mother was being fed through a gastrostomy feeding (“G feeding”) tube. On January 24, 2013 the applicant disconnected her mother’s G feeding tube because of her mother’s high blood sugar level. She did so with her mother’s consent but without the permission of the long-term care home’s staff. Nurses at the long-term care home told the applicant she was not permitted to discontinue the G feeding ordered by the doctor. The nurses told the applicant that she had to leave the long-term care home’s property, as the home had a right to prevent her from trespassing. Someone from the long-term care home ended up calling Toronto Police Services. An officer other than the respondent told the applicant that she was required to leave the long-term care home’s premises or else she would be in violation of the Trespass to Property Act.

11On January 25, 2013, the applicant’s mother signed a letter of complaint. The letter stated that the applicant had disconnected the G feeding tube with her mother’s consent. The letter also stated that, by asking her daughter to leave the long-term care home’s premises, the police were assisting the long-term care home to break the Long-Term Care Homes Act. The letter quoted a section of the Act that provides, among other things, that every resident has the right to receive visitors of their choice. The letter also stated that, due to their actions on January 24, 2013, the long-term care home and the police had discriminated against her because of disability. The respondent and another police officer attended the long-term care home on January 25, 2013.

12When the respondent spoke to the applicant, she confirmed that she had disconnected her mother’s feeding tube. The applicant told the respondent that she had done so at her mother’s request. She also insisted that she had the right to do so under the Long-Term Care Homes Act. The applicant presented the respondent with her mother’s letter of complaint. At the summary hearing, the applicant agreed that the respondent advised her that he was not there to enforce the Long-term Care Homes Act but instead to enforce the Trespass to Property Act. The applicant also agreed that the respondent had told her that it was not appropriate for the police to intervene in a dispute regarding medical care. She agreed that the respondent told her that, if she wished to challenge the actions of the long-term care home, she should consider filing a complaint with the Ministry of Health and Long-term Care or by filing a complaint with the College of Physicians and Surgeons of Ontario. Finally, the applicant agreed that the respondent warned her about the potentially dangerous and criminal consequences of interfering with her mother’s medical care.

13The respondent ended up escorting the applicant off the long-term care home’s property. A few days later, the applicant called a police staff sergeant (not the respondent) who told her that she was not allowed to discontinue her mother’s G feeding because her mother was disabled. According to the applicant, the officer also said that he would not accept her mother’s complaint because she was disabled.

14The applicant did end up filing a complaint with the Ministry of Health and Long-Term Care about the long-term care home’s failure to follow her mother’s plan of care. After several months, the Ministry issued an inspection report finding that the long-term care home had failed to provide care as specified in the plan of care and ordering the home to address the issue. The applicant claimed that this delay significantly aggravated her mother’s health. She claimed it was inappropriate and discriminatory for the police not to intervene on January 25, 2013.

15The applicant also filed a complaint with the Office of the Independent Police Review Director (“OIPRD”). By letter dated February 16, 2013, the OIPRD advised the applicant that it had reviewed her complaint but that it declined to investigate it further.

analysis

16Evn assuming all the allegations in the Application to be true, I find that the applicant’s Application has no reasonable prospect of success. In my view, the applicant’s allegations cannot reasonably be considered to amount to a violation of her rights under Code by the respondent.

17Theapplicant is not disabled and therefore there is no basis on which the Tribunal could reasonably find that the respondent’s actions discriminated against her because of disability.

18I alo find that there is no basis on which the Tribunal could reasonably find that the respondent’s actions constituted a reprisal against the applicant under the Code. Section 8 of the Code provides specific protections against reprisal for claiming and enforcing one’s rights under the Code. The applicant did not provide any indication that either she or her mother had sought to claim or enforce their Code rights prior to the incidents set out in their Applications. The first time that anyone made a claim of discrimination in this case was when the applicant’s mother claimed, in her letter, that the police and the long-term care home were discriminating against her by requiring her daughter to leave their premises and by refusing to permit her to discontinue her mother’s G feeding. The applicant provided no information that would support an allegation that the respondent took any subsequent actions against her in retaliation for her mother’s allegation of discrimination in the letter. For this reason, there is no reasonable prospect that the applicant will be able to establish that the respondent reprised against her under the Code.

19It is clear from the Application and the applicant’s submissions in the summary hearing that the substance of the applicant’s claim is a claim of disability discrimination against her mother not against the applicant herself. I address whether this claim by the applicant’s mother stands a reasonable prospect of success in my decision with respect to her mother’s application.

Order

20Forthe reasons set out above, I find that the applicant’s Application must be dismissed as having no reasonable prospect of success under the Code.