J.M. v. St. Joseph’s Health Centre, 2014 HRTO 1145

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.M. Applicant

-and-

St. Joseph’s Health Centre Respondent

RECONSIDERATION DECISION

Adjudicator: Kathleen Martin Date: July 30, 2014 Citation: 2014 HRTO 1145 Indexed as: J.M. v. St. Joseph’s Health Centre

WRITTEN SUBMISSIONS BY

J.M., Applicant ) Self-represented

1On June 20, 2013, the Tribunal issued its Decision in this Application, J.M. v. St. Joseph’s Health Centre, 2013 HRTO 1088, dismissing the Application. The applicant has asked the Tribunal to reconsider its Decision.

Background

2In the Application, the applicant alleged discrimination with respect to services on the basis of disability arising out of the applicant’s interactions with various medical personnel working at St. Joseph’s Health Centre (the “Hospital”) and out of its Mobile Crisis Intervention Team (“MCIT”). By Interim Decision, the Application was dismissed against a physician who had been originally named as a respondent on the basis that it had no reasonable prospect of success (2012 HRTO 239, Request for Reconsideration denied 2013 HRTO 1089). A hearing then proceeded in respect to the remaining allegations, at which time evidence and argument was heard. The applicant filed written submissions supporting her position and both parties made oral submissions. The remaining allegations arising from the alleged treatment of the applicant on three separate dates (one at the Hospital and the other two involving the MCIT unit) were dismissed. The Tribunal also found that the Hospital’s response to the applicant’s internal complaints made about the applicant’s interactions with various medical personnel did not violate the Code.

The Request for Reconsideration

3The applicant did not file a Form 20 (Request for Reconsideration). However, the applicant filed submissions setting out the basis for her request, including the remedy sought. In the circumstances, I have considered the applicant’s submissions as her request for reconsideration.

4The applicant filed several versions of the request for reconsideration over the period July 23, 2013 to August 1, 2013, by email. According to the applicant’s two cover emails sent July 31, 2013 (filed August 1, 2013) with attachments, the amended reconsideration submissions in the attached documents correct grammatical mistakes and add to her argument “to give more support”. In light of this description, I have reviewed the latest version of the applicant’s submissions as her request for reconsideration. For clarity, the latest version filed August 1, 2013 consists of two documents – a 31-page document attached as j123.doc and a 53-page document attached as J.doc (together considered as the applicant’s Request for Reconsideration). It would appear that j123.doc is a repetition of 31 pages in the J.doc.

5The applicant relies on Rule 26.5 (c) and (d) in support of her Request. The applicant states that the Tribunal’s Decision is in conflict with established jurisprudence (26.5 (c)) and that there are other factors exist that outweigh the public interest in the finality of the Tribunal decisions (26.5 (d)).

Decision

6Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

7The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

8Rule 26 states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decision.

9The Tribunal’s Practice Direction on Reconsideration in effect at the time of the Request (January 2008, amended March 2010) states:

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

9The discretionary nature of the remedy continues to be highlighted in the current version of the Practice Direction (amended April 2014). The Practice Direction provides there is no right to reconsideration and that it is not an appeal or opportunity for a party to change the way it presented its case.

10From the foregoing, it is apparent that while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

11I have carefully reviewed the applicant’s Request for Reconsideration and do not find that the applicant has established any of the threshold criteria justifying reconsideration.

12As a general observation, the majority of the applicant’s submissions appear to be a re-arguing of the Application. In the Request, it is apparent that the applicant disagrees with the findings made and the content and sufficiency of the Tribunal’s reasons. The applicant provides her own detailed “characterization” of the evidence and either re-states submissions already made or makes submissions that she could have made at the time of the hearing. As stated in the Practice Direction, reconsideration is not an appeal or an opportunity to re-argue the case.

13The applicant does submit that the Tribunal showed bias that favoured the respondent since the Tribunal did not admit a record of arrest recorded by the police on their data system in connection with the applicant’s interactions with staff on September 17, 2006. I find no merit in this submission. While the applicant does not identify the record by name, Exhibits 49 and 50 consist of CIPS Case 1604736 and CIPS Case 1604867 respectively, both of which reference details concerning arrests by the police on the date in question and I presume are the documents in question. These documents were admitted on July 24, 2012, at the request of the applicant during her reply evidence.

14The applicant submits at several points in her submissions that the Tribunal breached the principles of procedural fairness and natural justice in its hearing. While a genuine breach may provide a legitimate ground for reconsideration, I do not find that the examples provided reflect any substantive breach of these principles.

15For example, the applicant submits that the Tribunal violated the principles of procedural fairness and natural justice by not allowing in Constable Bateman’s notes. I do not find that this is properly characterized as a breach of natural justice or procedural fairness. As set out in the Tribunal’s reasons, the applicant herself had initially objected to the introduction of the notes (which was upheld) and when the applicant later sought to introduce the notes, I ruled that the notes would not be admitted having regard to a number of reasons set out in paras. 6-8 of the Decision.

16The applicant also submits that the Tribunal breached the principles of procedural fairness and natural justice by not addressing the “pith” of her complaint. For example, the applicant states that the Tribunal did not address Ms. Stefan’s conduct (the nurse involved in the interactions with the applicant on June 7, 2007) and improperly considered whether Ms. Stefan “forced” an assessment on the applicant.

17I find that there is no merit to this claim. The Tribunal did address the issues raised in the case. The allegations concerning Ms. Stefan’s interactions with the applicant are addressed at paras. 48-50, including the applicant’s allegation that she was subjected to a forced assessment. While the applicant may disagree with the findings and conclusions, that is not indicative of a breach of procedural fairness or natural justice principles. Further, the Tribunal did not introduce a defence in its analysis by addressing whether there was a forced assessment but appropriately addressed the claim being made by the applicant that she had been subjected to a forced assessment.

18Finally, the applicant submits that the Tribunal should reconsider its Decision because it is inconsistent with established jurisprudence, citing several examples.

19For example, the applicant submits that the Tribunal conflated the determination of whether the conduct was discriminatory with the justification offered in paragraph 61 of the Decision, contrary to established jurisprudence. The applicant states that while acknowledging that the Tribunal never “explicitly said so” [the Tribunal] suggested that the nurses had very strong public policy reasons for the nurses to be unrestrained in their ability to respond when [the Tribunal] states that the nurses’ purpose of the call was “to assess the applicant safety”.

20The applicant’s interpretation of the Tribunal’s reasons is incorrect. As the applicant herself acknowledges, the Tribunal did not express the justification that the applicant now relies on. As the case had been heard, the Tribunal properly considered all the evidence at paras. 61 and following (i.e., the evidence of the applicant and the evidence of the respondent) in determining whether discrimination had occurred consistent with the approach discussed with approval by the Court of Appeal (see Peel Law Association v. Pieters, 2013 ONCA 396 at paras. 87-89).

21Further, the applicant submits that the Tribunal’s Decision is contrary to Withler v. Canada (A.G.), 2011 SCC 12, [2011] 1 S.C.R. 396, because at para. 62 I referred to the fact that I had heard no evidence from which I could reasonably infer that the applicant was treated any differently from others who have been recipients of the care or involvement of the MCIT. The applicant submits that “ the Supreme Court states that a formal analysis based on comparisons between the claimant group and a “similarly situated group does not assure a result that captures the wrong to which a code claim is directed…” and that one must look at the full context.

22I disagree that the Tribunal’s Decision is inconsistent with Withler. At paras. 61 and following, the Tribunal considered the full context and concluded that the applicant had not convinced the Tribunal that the treatment was discriminatory. The further statement of the absence of any evidence from which the Tribunal could infer differential treatment is not inconsistent with Withler.

23Finally, the applicant states that the “vice chair’s findings of fact are not consistent with established jurisprudence” relying on Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482, and the Tribunal’s statements in that case about the test for discrimination. The applicant submits that she did not have to expressly state that she was filing a Code complaint to trigger an investigation by the patient advocate and that it was enough that she told the advocate that the nurse did not assess her despite the fact that she was arrested under the Mental Health Act.

24I do not find that the Tribunal’s decision is inconsistent with Hendershott. The applicant appears to be challenging the Tribunal’s conclusions on whether the Hospital’s response to the applicant’s internal complaints violated the Code. The Tribunal cited the relevant law at para. 78. I note that the references to Hendershott relied on by the applicant address a different question (the test for discrimination) and not the duty on a respondent to investigate.

25To the extent the applicant makes any other submissions in support of the Request, I do not find that the applicant has established that the Tribunal’s decision is in conflict with established jurisprudence, or Tribunal procedure, and that the proposed reconsideration involves a matter of general or public importance; or has pointed to any other factors that exist that outweigh the public interest in the finality of Tribunal decisions.

26In the result, the Request for Reconsideration is denied.