Barber v. South East Community Care Access Centre, 2013 HRTO 60

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carrie Barber by her litigation guardian Sheila Barber

Applicant

-and-

South East Community Care Access Centre and Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care and the Minister of Community and Social Services

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: January 11, 2013

Citation: 2013 HRTO 60

Indexed as: Barber v. South East Community Care Access Centre

APPEARANCES

Carrie Barber by her litigation guardian Sheila Barber, Applicant

Hugh Scher, Counsel

South East Community Care Access Centre, Respondent

Shane Smith, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, Respondent

Beth Beattie, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services, Respondent

Katharine Renison, Counsel

Introduction

1The applicant, Carrie Barber, is a person with multiple and complex health problems that require constant care. She lives at home with her mother and litigation guardian, Sheila Barber. Sheila Barber is a registered nurse and is intensely involved in the applicant’s care, and over the past several years has done much of the care herself. According to Carrie’s physicians, Sheila Barber has done an excellent job of providing nursing care to Carrie.

2The respondent, South East Community Care Access Centre (“SECCAC”) operates in eastern Ontario. CCACs are statutory bodies governed by the Community Care Access Corporations Act 2001, S.O. 2001, c. 33, and the Home Care and Community Services Act, 1994, S.O. 1994, c. 26. Community services provided by CCACs include community support services, homemaking services, personal support services and professional services such as nursing, physiotherapy and occupational therapy. Such services are generally provided by external service providers that contract with the CCAC to provide the services.

3Carrie Barber has been a client of the SECCAC and its predecessor for over 25 years. However, she has not received services for several years. According to the applicant, this is because the CCAC has withdrawn services. According to the SECCAC, the service providers with whom it contracts have refused to provide services to the applicant and it has been unable to find replacement service providers.

4This 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 disability. What is at issue in this Interim Decision is whether the Application to this Tribunal, framed as allegations of discrimination with respect to services because of disability by the two respondent Ministries and the SECCAC, has no reasonable prospect of success, in whole or in part.

5There have been disputes about the in-home services provided to Carrie Barber. Sheila Barber and many of Carrie’s physicians believe that actions of providers contracted to the SECCAC put her health and life at risk. Among the numerous incidents the applicant has raised are a failure to attend for scheduled appointments, the use of latex even though Carrie has a latex allergy, and an employee who had alcohol in her purse. The CCAC acknowledges some errors, but submits that the applicant is not receiving services because of the actions and conduct of her mother and a general lack of cooperation with the SECCAC. Among the numerous incidents it cites are the refusal of service personnel to provide services because of how they said they were treated by Sheila Barber, that she refused to accept certain provider personnel, and the fact that she attempted to direct care providers contrary to what the CCAC says are best practices.

6Sheila Barber strongly favours the development of an agreement by which Sheila Barber would engage services for Carrie and would be reimbursed for the cost of such services by the SECCAC and/or the Ministries which are also named as respondents. She wants to be able to procure and supervise the delivery of home care herself.

7There is no question that there are serious disputes between the applicant and the CCAC about the nature and quality of the care that Carrie was provided and how such care should be provided in the future. There is also no question that there are other ways for the applicant to pursue litigation about these issues, notably an action in negligence and an appeal to the Health Services Appeal and Review Board under s. 40(1) of the Home Care and Community Services Act, 1994, c. 26, as amended. What I must decide is whether the applicant’s allegations are proper Code claims.

THE APPLICATION

8This Application has had a significant procedural history. An Application was initially filed on December 29, 2009. On February 16, 2010, the applicant filed a revised Application and Request to Expedite. On March 17, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 581, denying the Request to Expedite and noting that many of the allegations appeared to be outside the Tribunal’s jurisdiction. The applicant was directed to file, within 30 days of that Interim Decision, a revised summary of allegations that made clear the applicant’s theory of discrimination under the Code. The Applicant was directed to explain clearly which laws, policies, or actions violated the Code, and how these actions were discriminatory on the basis of disability as opposed to a violation of the respondents’ statutory, constitutional or tort obligations.

9The applicant’s summary was filed on May 12, 2010. The summary of the allegations sets out the following categories of alleged violations of the Code, and also contains further details of each:

a. Failure on the part of the Respondents to conduct an appropriate individualized assessment of the unique needs and requirements of the Complainant [sic] in order to determine the most appropriate manner of funding and delivery of supports and services as a means to accommodate and address the Complainant’s complex disability;

b. Failure by the Respondents to implement a suitable funding and service delivery arrangement to provide for the Complainant’s needs in accordance with the terms of applicable legislation and the Human Rights Code given her eligibility for such care, support and services and past approval of a plan for this purpose, as a direct result of the nature of her disability and the Respondent’s refusal or inability to develop and implement a plan of care that meets with the medical needs and requirements and human rights of the Complainant;

c. Failure by the Respondents to adhere to medical orders and directives in the course of determining the most appropriate funding and delivery mechanism with respect to supports and services to address the Complainant’s complex disability;

d. Failure to carry through with appropriate discharge plans and safety protocols in the course of delivering funding and services and support to the Complainant because of her unique needs and requirements as a result of her complex disability;

e. Failure by the Respondents to consult with the Complainant and her treating physicians with respect to implementation of appropriate funding, delivery and support mechanisms in order to implement the Complainant’s required care plan to address the unique needs and requirements of her specific disability;

f. Engaging in acts of harassment, misconduct and reprisals for the Complainant’s attempts to enforce her rights to receive adequate and appropriate services and support in accordance with the directions of her treating physicians and the law;

g. Implementation and approval of a discriminatory “elect to work” policy which has resulted in the deprivation of necessary and appropriate services and supports to the Complainant in a medically prescribed fashion, as a direct result of her specific and complex disability and the unique needs that it creates in terms of service delivery.

10Following a further case management call, dates were set for the respondents to file Responses and the applicant to file a Reply. In its Response, the SECCAC took the position, among other issues, that Sheila Barber was not able to properly act as litigation guardian for Carrie Barber. It asked that this issue be dealt with as a preliminary matter. The respondent Ministries took the position that the Application did not relate to alleged discrimination by them. Despite several extensions to the date set, the applicant never filed a Reply.

11A Case Management Conference was held on January 21, 2011 to discuss how the litigation guardian issue should be addressed. During that conference call, counsel for the applicant stated that Sheila Barber had a power of attorney for personal care and property under the Substitute Decisions Act, 1992, S.O. 1990, c. 32 (“SDA”), that entitled her to act as litigation guardian. Dates were set for the power of attorney to be disclosed and for argument on February 23, 2011 on the question of whether the Tribunal has jurisdiction to remove a power of attorney in such circumstances, particularly in light of the wording of s. 59(2) of the SDA: see 2011 HRTO 165. However, when the power of attorney was disclosed it was apparent that the power of attorney did not establish Sheila Barber’s right to act as litigation guardian. Accordingly, dates were set for the provision of an affidavit in support of the request of Sheila Barber to be appointed by the Tribunal as litigation guardian for Carrie Barber in this proceeding and argument on the question of whether Sheila Barber was an appropriate litigation guardian. Argument was heard on this issue in April of 2011, and an Interim Decision appointing Sheila Barber as litigation guardian was released on February 22, 2012, together with Interim Decisions in two other cases argued in September 2011 that raised the same issue: 2012 HRTO 368.

12Together with the Interim Decision, the Tribunal issued a Case Assessment Direction directing a summary hearing pursuant to Rule 19A of its Rules of Procedure on the issue of whether the Application should be dismissed, in whole or in part, against some or all respondents, on the basis that there is no reasonable prospect that it will succeed. The Case Assessment Direction noted that the applicant must be able to prove discrimination or adverse effects as compared with others with different characteristics, and drew the parties’ attention in particular to Ball v. Ontario (Community and Social Services), 2010 HRTO 360. The summary hearing was held by teleconference on September 19, 2012.

RELEVANT LEGAL PRINCIPLES

13Rule 19A.2 provides as follows:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

14In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, the Tribunal explained the analysis during a summary hearing as follows:

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.

15In Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17, the Tribunal stated as follows:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

16This Application alleges discrimination in the implementation of services pursuant a government benefit program. There are well-established legal principles related to such claims. The Tribunal has emphasized that a mere allegation that decisions were not properly made in a disability-based benefit program is not an allegation of discrimination within the meaning of the Code. In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at para. 22, the Tribunal stated as follows:

As emphasized in Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797 (“Zaki #2”), at para. 15, to proceed through the Tribunal’s process there must be something more than an assertion that the applicant’s particular disability was not dealt with properly in a particular case to establish discrimination, such as systemic problems, policies, or considerations unrelated to the implementation of the program that differentiate based on Code grounds. As the Tribunal stated at para. 1:

[T]he prohibition against discrimination because of disability in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) does not give this Tribunal the power to review decisions under disability-based benefit programs to determine whether they are correct under the legislation, regulations, or policies governing the program; this would be giving an appeal function to the Tribunal that the Legislature did not intend. Of course, as the Tribunal has recognized in other cases, discrimination in government and other benefit programs may be found in other ways such as policies, systemic practices, or considerations based on prohibited grounds irrelevant to the decision being made.

An Application that is merely an appeal of a decision under statute should be dismissed on the basis that it cannot be reasonably considered to amount to a Code violation and therefore has no reasonable prospect of success.

[emphasis added]

17The courts and the Tribunal have emphasized that there is no obligation under s. 15 of the Charter or under the Code that government benefit programs be perfectly tailored to the needs of every individual. As the Supreme Court of Canada stated in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at para. 82:

Of course, government benefits or services cannot be fully customized. As a practical matter, general solutions will often have to be adopted, solutions which inevitably may not respond perfectly to the needs of every individual.

In Ball, supra at para. 96, the Tribunal emphasized that “equality rights do not require that government benefits be fully customized to the needs and circumstances of every individual”.

18In El Jamal v. Ontario (Minister of Health and Long-Term Care), 2011 HRTO 1952, the Tribunal dismissed a claim that the government had failed to fund a drug the applicant asserted he needed. The Tribunal rejected the idea that the Code requires that the government provide funding because an individual has a disability-related need for a health benefit. It emphasized, at para. 24, that:

Discrimination will only be established where an applicant shows that he or she was treated differently (for example, denied a benefit that was available to others) and that a Code-related ground was a factor in this differential treatment.

ANALYSIS

A. The Summary Hearing Procedure

19The applicant argues that this case raises complex questions of law that can only be addressed with full evidence because of what is alleged to be a complicated factual and legal background. I disagree. The legal principles that apply to this type of claim are well-established, and the applicant is responsible for fully and clearly articulating her factual allegations in a manner that shows they have a reasonable prospect of success. If she cannot, the Application must be dismissed. It would not be fair or proportionate justice to proceed with a multi-day hearing on a claim or significant aspects of a claim that, based on established law and the facts alleged, has no reasonable prospect of success. The test under Rule 19A is well-established, has been applied by the Divisional Court (Khassria v. Toronto Police Service, 2012 ONSC 6588) and provides that if, assuming all the allegations to be true, the Application cannot be successful, it must be dismissed.

B. Claims Against the Ministry of Health and Long-Term Care and Ministry of Community and Social Services

20I address first the applicant’s claims against the respondent ministries. The applicant explains these claims in correspondence in advance of the summary hearing as follows:

We believe that the nature of the relationship between the Ministry of Health and Long Term Care and the Ministry of Community and Social Services relative to funding of accommodated services and supports for disabled persons such as the applicant warrant that this complaint be continued as against these ministries by virtue of the discriminatory application of the requirements set out under the applicable legislative regime and the failure on the part of both ministries to conduct an individualised assessment of the applicant’s needs and requirements and how those needs can best be accommodated through both the funding and delivery of services for which the respondent ministries are responsible. We further note that the respondent SECCAC receives money from the respondent Ministry of Health and that the two are responsible for the allocation of resources under the applicable legislative regime in a manner that properly meets the needs and requirements of the applicant, in light of her unique and complex needs arising from her disability.

21In oral argument, counsel for the applicant emphasized that the respondent Ministries have failed to meet the applicant’s needs and put her at risk, and argued that an individual funding arrangement would be a proper “accommodation” of the applicant’s disabilities by the government. These arguments reflect the submission in the summary of allegations that the respondents are required, under the Code, to conduct an individualized assessment of the applicant’s needs and provide services tailored to her disability.

22The applicant’s claims in this regard have no reasonable prospect of success in light of the established case law discussed in the previous section. Martin, Ball and El Jamal make clear that government does not violate the Code merely because it has failed to precisely tailor benefit programs to the individual needs and circumstances of individuals with disabilities. General solutions are acceptable. Moreover, there is no general requirement that government provide funding to meet every need of persons with disabilities.

23Accordingly, there is no requirement in these circumstances for the respondent ministries to conduct an individualized assessment of the applicant’s needs, nor is it discrimination if funding for all of the applicant’s needs has not been provided. The applicant has not alleged that either of the respondent ministries has treated her differentially from others with different disabilities or made anything other than a bald assertion that the legislation or its application by the respondent Ministries is discriminatory. The allegations against the ministries have no reasonable prospect of success and therefore the Application must be dismissed as against them.

C. Claim Against the SECCAC

24The allegations against the SECCAC are more complex and relate to the entire history of the relationship between the applicant and the SECCAC and the services it provided. They attempt to cast what are alleged to be improper provision of services and disagreements over the nature of the plan of care as violations of the Code. I find that, with the exception of the allegation that the eventual termination of all services to the applicant was discriminatory, these allegations have no reasonable prospect of success.

25Many of the applicant’s allegations attempt to cast disagreements or dissatisfaction with the nature, quantity and quality of the health care services provided to the applicant by the SECCAC and the service providers with whom it contracts as violations of the Code. These are framed, alternatively, as failure to meet the needs of her specific disability as suggested by her doctors, violations of the duty to accommodate, harassment, and reprisal, among others.

26The Code prohibits discrimination, which is a comparative concept. To establish discrimination because of disability, the applicant must show that she experienced substantive discrimination as compared with others, because of her disability, by the SECCAC. The Code is not a mechanism to challenge, in general, the quality of health care that a person has received or a disagreement over the nature or extent of the care that was provided. As stated in Seberras, there must be “something more than an assertion that the applicant’s particular disability was not dealt with properly in a particular case to establish discrimination, such as systemic problems, policies, or considerations unrelated to the implementation of the program that differentiate based on Code grounds”.

27I appreciate that the applicant believes that her physician’s directives have not been followed, including in setting up the plan of care, that her health has been put in jeopardy because care providers have used materials to which she is allergic, and that there have been failures to attend when scheduled, among many other things. However, these are not allegations that the Code has been violated.

28The applicant relies upon the concepts of duty to accommodate, harassment, and reprisal. There is no freestanding duty to accommodate persons with disabilities. The duty to accommodate arises, under ss. 11 and 17 of the Code, when a respondent attempts to justify discrimination; the discrimination cannot be justified unless the respondent shows that it could not accommodate the person’s needs without experiencing undue hardship. To trigger the duty to accommodate, an applicant must show that there has been direct or indirect discrimination on the basis of one of the Code grounds. The mere assertion that the applicant’s medical needs have not been properly met does not allege Code-based discrimination or suggest a violation of any duty to accommodate. The allegations of discrimination and failure to accommodate related to the manner in which medical services were delivered to the applicant have no reasonable prospect of success.

29Harassment, under s. 10(1) of the Code, means “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. Having reviewed the pleadings and the documents filed by the applicant, I can see no allegations that could reasonably fall within this definition. For example, a request that the applicant’s mother confirm her authority to make decisions on Carrie’s behalf, a refusal to follow doctor’s orders, or improper provision of services is not vexatious comment or conduct on the basis of disability.

30Reprisal requires that an applicant show that a respondent has intended to reprise against them for having asserted their rights under the Code. As stated in Noble v. York University, 2010 HRTO 878 at para. 33:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

31There is no evidence that anyone asserted the applicant’s Code rights (as opposed to dissatisfaction over the quality of health care that she was receiving) prior to the incidents she contests, and no basis upon which the Tribunal could find that there was an intention by the SECCAC to reprise against her because she did so.

32I find that there is no reasonable prospect that the allegations of improper care, of a plan of care that failed to fully meet the applicant’s needs, or the failure to implement a self-managed care model could show discrimination by SECCAC within the meaning of the Code. None of the allegations prior to the termination of services allege something more than an assertion that the applicant’s particular disabilities were not dealt with properly under this government program.

33However, it cannot be said, at this stage of the proceedings, that the allegation that the SECCAC discriminated against the applicant when services to her were terminated has no reasonable prospect of success. As I understand the applicant’s allegations in this regard, she submits that the complexity of the applicant’s disability was a factor in the withdrawal of services. While the respondent says that the decision to terminate service was that of service providers based on Sheila Barber’s conduct, the applicant alleges that SECCAC contracts with service providers that allow the organization or individuals to refuse service cause systemic discrimination against those who have complex disabilities, including the applicant. In other words, the applicant suggests that negotiating contracts that allow private service providers to refuse services to specific individuals results in discrimination against those with more complex disabilities than others, and that this has resulted in the termination of service to the applicant.

34I appreciate that the SECCAC’s theory is that the refusal to provide services in this case has nothing to do with the complexity of the applicant’s disabilities, but rather the conduct of her mother. However, this will require the hearing of evidence to determine whether the applicant has met her burden to establish that the complexity of the applicant’s disabilities was a factor in the termination of services by the SECCAC and whether the contractual arrangements result in systemic discrimination against persons with the applicant’s disabilities. Accordingly, this aspect of the Application is not dismissed. I note that systemic allegations of the type put forward by the applicant about the respondent’s “elect to work” policy may well require expert evidence to be successful.

NEXT STEPS

35The applicant and the SECCAC are directed to confirm with the Tribunal within two weeks of the date of this Interim Decision whether they are agreeable to mediation in light of the revised scope of the Application. If both parties agree, mediation will be scheduled. If the parties do not both agree to mediation, a three-day hearing will be scheduled.

ORDER

36The Tribunal makes the following Orders:

1. The Application is dismissed as against the respondents Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care and Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services.

2. The Application shall proceed against the South East Community Care Access Centre only with respect to the allegation that this respondent discriminated against the applicant because of disability in the termination of services to her. All other allegations against the SECCAC are dismissed.

3. The applicant and the SECCAC shall advise the Tribunal within two weeks of the date of this Interim Decision whether they agree to mediation. If the parties agree to mediation, mediation will be scheduled.

4. If the parties do not agree to mediation, a three-day hearing will be scheduled.

5. I am not seized of this Application.