Speelman v. Hotel Dieu Hospital, 2014 HRTO 204

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne Speelman on behalf of Cole Speelman

Applicant

-and-

Hotel Dieu Hospital, Windsor Regional Hospital, Sabeena Misra, L. Atwood, France Fernando, Angela Novena, David Adekoya, Roy Diklich, Curtis Fedoruk and Adewale Akinisotu

Respondents

DECISION

Adjudicator: Brian Cook

Date: February 13, 2014

Citation: 2014 HRTO 204

Indexed as: Speelman v. Hotel Dieu Hospital

APPEARANCES

Anne Speelman on behalf of Cole Speelman , Applicant

Self-represented

Hotel Dieu Grace Hospital, Respondent

Kate Dearden, Counsel

Windsor Regional Hospital, Respondent

Paula Trattner, Counsel

Sabeena Misra, L. Atwood, France Fernando, Angela Novena, David Adekoya, Roy Diklich, Curtis Fedoruk and Adewale Akinisotu, Respondents

Helen Richards, Counsel

Introduction

1This is an Application filed under s. 34(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to the provision of health services because of disability, family status, age and association with a person identified by a Code ground. The Application was filed on May 9, 2013 and was filed by Anne Speelman on behalf of her son, who is an adult. In this Decision, Ms. Speelman is referred to as the applicant and her son is referred to as the claimant. The respondents include two hospitals and a number of individual physicians.

2On its own motion, the Tribunal directed that a summary hearing be held to determine if the allegations were timely and if the Application should be dismissed as having no reasonable prospect of success.

3The summary hearing was scheduled for February 5, 2014 at 9:30 a.m. The applicant did not call in at that time but the hearing reconvened at 11:00 a.m. when the applicant contacted the Registrar’s office to say that she had been unable to connect at 9:30 a.m.

Background

4During the telephone conference call hearing, the applicant explained that she was employed at various times by the two hospital respondents, although the hospitals that now exist were created when a number of smaller hospitals were consolidated. Her employment ended in 2003. The applicant's son is an adult and has a history of significant health issues.

5The Application describes problems that the applicant experienced when she took her son to hospital for medical treatment in the period from December 2009 to May 2012. The applicant alleges that the hospitals and the treating physicians provided inadequate care and sometimes were medically negligent.

6The applicant believes that this happened, at least in part, for Code-related reasons. First, the applicant alleges that although her son had very significant physical symptoms arising from the different significant medical problems that have been diagnosed, the physicians sometimes presumed that the symptoms were psychologically based. Second, she alleges that the reason for the alleged inadequate treatment of her son was discrimination and reprisal against her. She believes that these issues started during her employment with the hospitals when she raised a number of policy and patient care issues that came to her attention during her employment. She believes that there was ongoing conflict arising out of these issues after her employment ended and additional conflict arising out of the end of her employment. She alleges that the alleged inadequate medical treatment of her son was related in part to reprisal by the hospital and the physicians relating to these earlier events.

7During the telephone conference call, the applicant spoke about the years of frustration and anguish that she had endured in her own dealings with the hospital and in regard to her attempts to ensure that her son received appropriate medical care. She emphasized that it is important to understand how the issues regarding her son’s medical care are intricately tied to the issues that arose during her employment by the hospitals and to her subsequent disputes with the hospitals.

The summary hearing process

8The Tribunal’s summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. Details about the process are discussed in the Tribunal’s Practice Direction on Summary Hearings which states:

A summary hearing usually considers:

• whether, assuming all of the allegations are true, the Application has no 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; and/or

• whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.

9The Tribunal does not hear evidence in a summary hearing. It instead hears what evidence the applicant expects to be able to call if the Application proceeds to a hearing on the merits. The Tribunal must then assess whether the evidence that the applicant proposes to call is likely to establish that the discrimination alleged occurred.

10In some cases, the evidence that an applicant proposes to call is his or her own testimony about what happened. After hearing this information, the Tribunal may determine that even if the applicant’s evidence is true, the applicant has not shown that there is evidence that can establish a link between the alleged act of discrimination and the prohibited ground of discrimination, and the Application may be dismissed on that basis.

Timeliness

11Section 34 of the Code states:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

12In this case, the Application was filed on May 9, 2013. Most of the alleged events occurred in 2011 and these occurred more than one year before the Application was filed. The Application references the admission of the applicant’s son to hospital on May 5, 2012. The Application alleges that the applicant’s son was discharged on May 10, 2012, but his condition had not resolved. The Application suggests that the fact the medical condition was not resolved prior to discharge from the hospital was discriminatory. If there was a basis for this allegation, the allegation would relate to something that happened within one year of the filing of the Application.

13The applicant argues that once this is established then the earlier events could be a part of a series of events. In the alternative, she submits that there is a good faith explanation for the delay in filing the Application about the earlier alleged events.

The allegations relating to the May 2012 hospital admission

14The Application states that the applicant's son was admitted to Windsor Regional Hospital on May 5, 2012 for stomach issues. Many tests were administered and two surgeries were performed. According to the applicant, despite all this, the medical issues remained unresolved and the applicant was discharged on May 10, 2012.

15The applicant indicated that she eventually took her son for medical care in another city where a better result was achieved.

16The applicant’s theory about why the medical issues remained unresolved upon discharge was that there was medical incompetence. In addition, she believes that inadequate care was provided to her son in reprisal against her.

17The respondents submit that the applicant’s son was provided with appropriate medical care and there was no medical incompetence. The respondents in respect of this allegation note that the best evidence about whether the medical care provided was appropriate would be found in the medical records concerning the admission. Consent to allow the respondents to access those records has been denied. The respondents assert that this since the applicant and claimant have not consented to the release of the records there is really no evidence about the appropriateness of the medical care that was provided and no evidence to substantiate that any discriminatory factors had anything to do with the medical care provided.

18I note that the issue of whether appropriate medical care was provided to the claimant during the hospital admission in May 2012 is not something that this Tribunal has the jurisdiction to determine. To put it another way, even if proof of medical incompetence or improper medical care was established, this would not establish an infringement of the applicant son’s Code-protected rights. The Tribunal would have jurisdiction to deal with an allegation that there was a discriminatory reason for the alleged incompetent or improper medical care. However, before embarking on a full hearing about such an allegation, the Tribunal must be satisfied that there is a basis for the allegation. If the Tribunal finds that there is no reasonable prospect that the applicant can prove her allegations, the Application may be dismissed.

19In this case, in my view, there is no reasonable prospect that the applicant could show that the medical care of her son in May 2012 was influenced by discrimination on the basis of any Code-protected ground.

20It is first important to keep in mind that the Application alleges that the Code-protected rights of her son were infringed. This is not an Application alleging that the applicant's own rights were infringed.

21The theory underlying the Application is that the doctors who cared for the applicant’s son discriminated against him by providing incompetent or substandard medical care in reprisal for issues related to her employment by the hospital several years earlier.

22The proposition that doctors would conspire to provide incompetent or substandard medical care for a patient to retaliate against the patient’s parent is, on its face, highly improbable. It appears that the only evidence that the applicant will provide is her own conviction that this must have happened because of the bitterness that she has regarding her own relationship with the respondents coupled, of course, with her obvious and understandable concerns about her son’s health problems. The applicant suggests that evidence might also be available from the medical records about her son’s treatment. However, she states that her son will not consent to the release of those records.

23From the information that is available about the treatment in May 2012, it appears that the applicant’s son was hospitalized for five days during which a great many tests were done and two surgeries were performed. This does not seem consistent with an allegation of a conspiracy to provide substandard medical care. Moreover, even if there was evidence of substandard medical care, it would not follow that the reason for this was retaliation against the applicant.

24For these reasons, I conclude that there is no reasonable prospect that the applicant could successfully show that her son was provided with substandard or medically incompetent treatment in May 2012 because of reprisal against the applicant or because of his association with her.

25It follows from this that the allegations relating to May 2012 are not part of a “series of events” for the purpose of section 34 of the Code.

Timeliness of the earlier allegations

26The next issue is whether there is a good faith explanation for the delay in filing the Application in regard to the events that are alleged to have occurred more than one year before the Application was filed.

27The applicant submitted that there is a good faith explanation for the delay. In particular, she indicated that she has a number of serious health issues, including post-traumatic stress disorder, and that as a result, it was difficult to address the Application process. In addition, she has responsibility for the management of her son’s medical conditions and her mother also has medical issues that she is very involved in.

28The Tribunal has said that establishing a good faith explanation for delay in filing an Application requires more than showing a lack of bad faith. The Code requires applicant's to file Applications within one year of the alleged discriminatory events so that allegations can be investigated and addressed and so that respondents can fairly respond to allegations made about them. While it is very clear that the applicant is a passionate advocate on behalf of her son’s health and that she has many challenges in her own life, this does not provide a good faith explanation for the delay within the meaning of section 34 of the Code.

Decision

29There is no reasonable prospect that the applicant could establish that inadequate or incompetent medical treatment of her son in May 2012 occurred because of his association with her.

30The other alleged discriminatory events relating to disability, family status and age occurred more than one year before the Application was filed. In the absence of a good faith explanation for the delay the Tribunal does not have the jurisdiction to deal with those earlier events.

31The Application is dismissed.