Terry Kline v. Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, 2013 HRTO 230

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terry Kline

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: February 7, 2013

Citation: 2013 HRTO 230

Indexed as: Kline v. Ontario (Community Safety and Correctional Services)

appearances

Terry Kline, Applicant ) Self-represented

Her Majesty the Queen in Right ) of Ontario as represented by the ) Jordana Joseph, Counsel Ministry of Community Safety ) and Correctional Services, Respondent )

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to services because of his disability. At the hearing, I dismissed the Application with written reasons to follow. The following are my written reasons.

BACKGROUND

2On December 24, 2009, the applicant filed his Application. He alleged that the respondent failed to accommodate his disability-related needs when a doctor denied his request for prescription medications (Oxycontin, ratio-oxycocet, apo-sertraline, and apo-oxazepam) to manage his disabilities (knee pain, anxiety and sleep problems) during a 14-day incarceration (April 21 to May 4, 2009) in a detention centre. He stated that suddenly being deprived of his medications resulted in withdrawal symptoms such as chills, dizziness, diarrhea, and vomiting. The applicant admitted that he did not have his prescriptions with him, but stated that he verbally explained what medications he required. He also admitted that he had access Tylenol Extra Strength and anti-diarrhea medication during his incarceration, but stated that these medications were ineffective.

3On March 26, 2010, the respondent filed a Response, which denied the allegation of discrimination. The respondent admitted that the applicant exhibited withdrawal symptoms and requested narcotics upon entering the detention centre. However, the respondent stated that the applicant did not have any prescriptions on his person, the narcotics that he requested were highly addictive, and a medical decision was made by a doctor not to administer any narcotics to him. The respondent also stated that the applicant saw a nurse almost every day during his incarceration.

4On June 6, 2011, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing was scheduled for November 22, 2011.

5The Notice set out the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses. Rule 16 requires each party to deliver to every other party and file with the Tribunal a list and copy of all documents that it intends to rely on no later than 45 days prior to the first scheduled day of hearing. Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list and brief statement summarizing the expected evidence of each witness no later than 45 days prior to the first scheduled day of hearing.

6In accordance with the Notice and Rules 16 and 17, the parties were required to disclose to each other and file with the Tribunal all the documents that they intended to rely on, a witness list and witness statements by no later than October 7, 2011. The respondent complied with Rules 16 and 17, but the applicant did not.

7On November 15, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) which directed the applicant’s attention to Rules 16.4 and 17.4, which state that no party may rely on or present any document not included on a document list and not provided to the other parties and filed with the Tribunal, or present a witness whose name and summary of evidence was not included in a witness list, except with the permission of the Tribunal.

8The applicant appeared for the hearing on November 22, 2011, without having complied with Rules 16 and 17. Most of the hearing day was spent trying to mediate the case, which was unsuccessful, and dealing with various preliminary issues. In view of the fact that the applicant was an unrepresented layperson, and the respondent was represented by legal counsel, I took steps to ensure that the applicant had a fair opportunity to present his case. Specifically, with respect to additional hearing dates, I provided the applicant with plain language directions on how to comply with Rules 16 and 17, and informed him that he should consider calling his doctor as a witness. With respect to calling witnesses, I informed the applicant that a witness may appear voluntarily at the request of a party or be summoned by a party. I specifically explained Rule 3, which provides:

3.1 On the request of a party, the Tribunal will provide a summons to witness in blank form and the party may complete the summons and insert the name of the witness.

3.2 Delivery of a summons to a witness is the responsibility of the party who obtained the summons.

9I then repeated these directions in writing in a CAD that was issued to the parties on November 24, 2011. The CAD also directed the applicant to comply with Rules 16 and 17 by no later than February 17, 2012, and warned him that if he failed to do so by this date, the Tribunal may dismiss his Application.

10On February 14, 2012, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing was scheduled to continue on July 4 and 5, 2012.

11The applicant did not comply with my direction to deliver to the respondent and file with the Tribunal all the documents that he intends to rely on, a witness list and witness statements by no later than February 17, 2012. On May 24, 2012, the respondent sent the Tribunal an e-mail which requested that the Application be dismissed as abandoned. On May 25, 2012, the applicant filed a witness list and brief witness statements, but did not submit the documents that he intended to rely on. Furthermore, his witness list stated that he was waiting for his doctor to return from vacation and his doctor was only “possibly” a witness.

12In its disclosure materials, the respondent indicated that it was planning to call three medical witnesses: (1) the doctor who made medical decisions with respect to the applicant at the detention centre (“doctor #1”), (2) a nurse who tried to contact the applicant’s family doctor, and (3) another doctor who reviewed the applicant’s medical records and agrees with the decisions of the first doctor (“doctor #2”).

13In his witness statement, doctor #1 states that he saw the applicant on April 22, 2009. He admits that the applicant told him that he needed Oxycontin for a chronic pain condition, but states that, although he considered whether there was a possibility of opioid or narcotic withdrawal, he did not prescribe it to him because his vital signs were stable, which indicated that there were no objective signs of intractable pain or opioid withdrawal. He also states that there are health and safety risks in prescribing such a medication because it is coveted within the inmate population, and those who are prescribed it are at risk of being targeted by others. He admits that the applicant provided the name of his family physician, but states that he directed that a phone call be made to the applicant’s physician about the applicant’s current prescriptions, and understands that the applicant’s physician did not respond.

14In his witness statement, the nurse states that he will testify about his efforts to contact the applicant’s family physician.

15In his witness statement, doctor #2, who specializes in substance abuse treatment and addiction medicine, states that, in his opinion, no physician should prescribe narcotics unless there is a definite clinical indication for such medication. He also states that the abuse of narcotics within the detention centre where the applicant was detained is prevalent, and that residents who are prescribed narcotics are soon identified by other residents who can exercise significant coercion to the point of injury in order to obtain the narcotics from the individual who is being prescribed the medications. He further states that it would not have been appropriate for doctor #1 to have accepted the applicant’s word that he has been prescribed narcotics and benzodiazepines without seeking confirmation from the applicant’s family physician.

16On June 14, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 1167, which stated the following at paras. 23-24:

Both parties should have their medical witnesses available to testify on both July 4 and 5, 2012. I clearly informed the applicant more than six months ago that he should consider calling his doctor as a witness, and clearly explained what steps he needs to take to call his doctor as a witness. Despite that, the applicant’s May 25, 2012 witness list stated that he is waiting for his doctor to return from vacation and his doctor is only “possibly” a witness.

At the outset of the hearing, I will clarify with the applicant if he is calling his doctor as a witness. If he is not calling his doctor as a witness, the parties should be prepared to address as preliminary issue whether the Application should be dismissed because it has no reasonable prospect of success.

17At the outset of the hearing on July 4, 2012, I asked the applicant if he was calling his doctor as a witness. He responded that he was not calling his doctor as a witness. I then directed the parties to provide oral submissions addressing whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success.

ANALYSIS

18Rule 19A of the Tribunal’s Rules of Procedures provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. Typically, summary hearings are held at a relatively early stage in the Tribunal’s process and involve receiving the applicant’s submissions on his or her legal theory and what evidence he or she anticipates calling at the merits hearing in support of the allegations. However, the principle that an application can be dismissed because it has no reasonable prospect of success is not limited to the initial early stage of the Tribunal’s process, and can be heard as a preliminary issue at the outset of a hearing of the merits of the application, as in the case at hand. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 18.

19The approach to deciding whether an application has a reasonable prospect of success was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

20The issue in the case at hand is whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated.

21Human rights tribunals have recognized that differences in opinion can arise between patients and doctors when doctors decide upon the best course of treatment for a patient, including whether or not to administer medication. These tribunals have consistently held that standard of medical care issues are not within a human rights tribunal’s jurisdiction, unless the doctor’s decision amounts to differential treatment based on a Code ground, or the doctor fails to accommodate the patient’s disability-related needs up to the point of undue hardship. See Patient X v. The Clinic and another, 2012 BCHRT 118; Wilson v. Dixie Road Medical Association, 2011 HRTO 1607; TenBruggencate v. Elgin (County), 2010 HRTO 1467; Egan v. Dr. Kennedy, Dr. O’Kane and St. Paul’s Hospital, 2006 BCHRT 15; and McDonald v. O’Malley and B.C. (Ministry of Public Safety and Solicitor General), 2005 BCHRT 154.

22In its submissions, the respondent stated that the Application has no reasonable prospect of success. The respondent stated that it admits that the applicant was denied the medications that he was seeking in the detention centre, but states that he was examined by medical professionals and received Tylenol and anti-diarrhea medication. The respondent stated that, absent evidence of discrimination, it is not the Tribunal’s role to second guess or adjudicate the decisions of these medical professionals. The respondent stated that, without evidence from his family doctor, the applicant has no reasonable prospect of proving, on a balance of probabilities, that the respondent failed to accommodate his disability-related needs up to the point of undue hardship.

23In his submissions, the applicant stated that his Application has a reasonable prospect of success. He stated that he can establish that he expressed his need for his medications in the detention centre, but was denied his medications, and his needs were never checked into. He stated that he can prove that he was discriminated against because of his disability because he has a bag of containers of the medications that he asked for with his family doctor’s name on them, which shows that his request was legitimate.

24In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent violated his Code rights by failing to accommodate his disability-related needs up to the point of undue hardship. There is no dispute that the applicant requested certain medications in the detention centre, but was denied those medications by a doctor, and given other medications instead. The mere fact that there was a difference in opinion between the applicant and the doctor in the detention centre about what medication to administer to the applicant is not sufficient to establish that there was a violation of the Code.

25Rather, the applicant must establish that he had disability-related needs with respect to his medication, and that the medical staff in the detention centre failed to accommodate those needs up to the point of undue hardship. In my view, the mere fact that the applicant has empty containers of the medications that he asked for with his family doctor’s name on them is insufficient to prove that he had disability-related needs with respect to his medication, and the applicant’s bald statement that the medical staff at the detention centre never checked into his needs is insufficient to prove that the respondent failed to accommodate his disability-related needs up to the point of undue hardship. Furthermore, in view of the fact that the applicant is not calling his family doctor to testify about his disability-related needs with respect to medication, and whether staff from the detention centre attempted to contact his doctor during his incarceration, I cannot see how the Application has a reasonable prospect of success.

ORDER

26The Application is dismissed.