Peiyu Gan v. Sergeant Gowan, 2014 HRTO 38

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peiyu Gan

Applicant

-and-

Sergeant Gowan

Respondent

RECONSIDERATION DECISION

Adjudicator: Jo-Anne Pickel

Date: January 10, 2014

Citation: 2014 HRTO 38

Indexed as: Gan v. Sergeant Gowan

WRITTEN SUBMISSIONS

Peiyu Gan, Applicant

Yunhoung He, Representative

Introduction

1The applicant seeks reconsideration of the Decision, 2013 HRTO 2080, dismissing her Application as having no reasonable prospect of success.

2For the reasons set out below, I find that the applicant has not established the existence of any of the criteria in Rule 26.5 of the Tribunals Rules of Procedure (“Rules”) that would cause me to reconsider my Decision.

The Decision being challenged

3The Decision was rendered following a summary hearing held under Rule 19A of the Tribunal’s Rules. Based on the written material filed by the parties and their submissions at the summary hearing, I dismissed the Application as having no reasonable prospect of success.

4The factual background to the Application is set out in paras. 10-15 of the Decision. In short, the applicant was a resident of a long-term care home and was being fed through a gastrostomy feeding (“G feeding”) tube. The applicant’s daughter disconnected her G feeding tube with the applicant’s consent but without the permission of the long-term care home’s staff. Someone from the long-term care home called Toronto Police Services. The respondent police officer declined to intervene in the circumstances because the applicant is disabled and the dispute related to her medical care. The applicant alleged that this was discriminatory because of disability.

5In the Decision, I found that the applicant’s daughter provided no information from which the Tribunal could reasonably find that it was discriminatory for respondent to refuse to intervene in a dispute over the applicant’s medical care in the circumstances of this case. I also found that there was no basis on which the Tribunal could reasonably find that the respondent’s actions constituted a reprisal against the applicant under the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). As noted in the Decision, the applicant’s daughter did not provide any indication that that she had sought to claim or enforce any Code rights prior to the incidents set out in their Application. Therefore, there was no basis on which the Tribunal could find that the respondent reprised against the applicant within the meaning of the Code.

Applicable Principles

6In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 (“Sigrist”) the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as closed, subject to limited exceptions.

7The circumstances in which a Request for Reconsideration may be granted are set out in Rule 26.5 of the Tribunal’s Rules:

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 decisions.

Analysis

8The applicant seeks reconsideration under subsections (a), (c), and (d) of Rule 26.5. Almost all of the arguments made by the applicant’s daughter on her behalf are arguments she made in her Application, in her written submissions filed in advance of the summary hearing and orally in the summary hearing. As stated in my initial Decision, it is clear that the applicant and her daughter have had a history of difficulties with the long-term care home in which the applicant is, or was, a resident. However, for the reasons set out in my initial Decision, 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 police officer in this case.

Rule 26.5(a)

9The applicant submits that the Decision should be reconsidered because there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier.

10In her Request for Reconsideration, the applicant repeats much of the information contained in her Application against the respondent. Among other things, she states that the respondent said he could not intervene because the applicant is disabled and the dispute related to her medical care. The applicant also states that the respondent did not consider her request to permit her daughter to temporarily disconnect her G feeding tube and did not consider her rights under the Long-Term Care Homes Act.

11The one fact that the applicant clarified in her Request for Reconsideration was that her daughter did not recall the respondent telling her that he had been called to enforce the Trespass to Property Act. This factor does not affect my conclusion that the Application stands no reasonable prospect of success. There was no dispute between the parties that the respondent had advised the applicant and her daughter of his conclusion that it was not appropriate for the police to intervene in a medical dispute between the applicant and her long-term care home. For all the reasons given in the Decision, I find that there is no reasonable prospect that the applicant will be able to show that the respondent’s refusal to intervene was discriminatory.

12For the above reasons, I find that the applicant has not advanced any new facts or evidence that could potentially be determinative of the case and therefore I find that there is no basis on which to reconsider my Decision under Rule 26.5(a).

Rule 26.5 (c)

13The applicant also submits that the Decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. She makes two main submissions under this heading.

14First, the applicant claims that the respondent erred in not enforcing the Long Term Care Homes Act and that his reason for not enforcing the Act or intervening in the matter was discriminatory. This was the substance of the applicant’s submissions at the summary hearing. Therefore, this claim is simply a restatement of the submissions made in the summary hearing and dismissed in the Decision. As such, it does not provide a basis for a reconsideration of the Decision under Rule 26.5(c).

15Second, the applicant takes issue with certain statements in the Decision which indicated that her daughter agreed to certain relevant facts put forward by the respondent. Based on statements made in her Request for Reconsideration, it appears that the applicant has misinterpreted the relevant passage from the Tribunal’s Decision.

16Since summary hearings are determined without the benefit of evidence given under oath, it is important that the Tribunal determine which facts put forward by the parties are not in dispute. In this case, the respondent had made certain key factual assertions relating to his interactions with the applicant and her daughter. It was important that the Tribunal determine whether the applicant’s daughter disputed these factual assertions. This is why I asked the applicant’s daughter whether she agreed with certain key factual assertions made by the respondent. In the summary hearing, she indicated that certain key factual assertions were not in dispute.

17The applicant takes issue with my statement in the Decision that her daughter “agreed” to the respondent’s factual assertions. The applicant appears to take issue with the use of the term “agreed” because she claims that her daughter never agreed with the respondent’s submissions that it did not discriminate against the applicant. However, in the Decision, I did not find that the applicant’s daughter agreed with the respondent’s position but rather that she “agreed” -- that is, that she did not dispute -- certain factual assertions made by the respondent about his interactions with the applicant and her daughter.

18In her Request for Reconsideration, the applicant argues that her daughter did not “agree” with the factual assertions in question but that she instead “recalled”, “heard” or “remembered” certain of the facts as related by the respondent. This is precisely what was intended by the use of the term “agreed” in the Decision. By using the term “agreed”, I was indicating that the applicant’s daughter did not dispute certain factual assertions made by the respondent about his interactions with her and the applicant. I did not use the term to suggest that the applicant’s daughter agreed with the respondent’s claim that his actions were not discriminatory or his claim that it was inappropriate for the police to intervene in a dispute relating to medical care.

19I understand that the applicant and her daughter firmly believe that the respondent’s actions were discriminatory. I understand that the applicant and her daughter firmly believe that the respondent had a duty to intervene, that he did not intervene because the applicant is disabled and that this is discriminatory under the Code.

20However, human rights tribunals have consistently held that standard medical care issues, even those between a patient and a doctor, are not within a human rights tribunal’s jurisdiction, unless a decision amounts to differential treatment based on a Code ground. See 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.

21While the respondent allegedly said he would not intervene because the applicant is disabled, it was not disputed that the full context of that statement was that the applicant is disabled and the respondent determined it was inappropriate for the police to intervene in a dispute regarding her medical care. For the reasons set out in my initial Decision, the Application stands no reasonable prospect of success of establishing that it was discriminatory for the respondent to decline to intervene in a dispute between the applicant and her long-term care home over her medical care.

22In light of the above, I find that applicant has not advanced any information that would support her contention that the Decision is in conflict with established jurisprudence or Tribunal procedure.

Rule 26.5(d)

23The applicant claims that other factors exist that should outweigh the public interest in the finality of the Tribunal’s Decision. In her Request, she states that her extremely high blood sugar levels have had an impact on her kidneys, eyes, nervous system and heart. She claims that the respondent knew the harm that her high blood sugar levels would cause to her health and yet still refused to intervene in the conflict between her and the long-term care home over her G feeding tube.

24While I have a great deal of sympathy for the applicant and her daughter, these are not factors that would outweigh the public interest in the finality of the Tribunal’s Decision. I understand that the applicant believes that the respondent discriminated against her. However, for the reasons detailed in the Decision, I find that the Application has no reasonable prospect of success against the respondent police officer.

Order

25For the reasons set out above, the Request for Reconsideration is dismissed.