Ana Krysiak v. Ontario (Health and Long-Term Care), 2014 HRTO 412

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ana Krysiak

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care and Tarek Moharram

Respondents

DECISION

Adjudicator: Ruth Carey

Date: March 24, 2014

Citation: 2014 HRTO 412

Indexed as: Krysiak v. Ontario (Health and Long-Term Care)

APPEARANCES

Ana Krysiak, Applicant

Self-represented

Ministry of Health and Long-Term Care, Respondent

Beth Beattie, Counsel

Tarek Moharram, Respondent

Tom Jutzi, Counsel

INTRODUCTION

1This 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 goods, services, and facilities because of race, place of origin, ethnic origin, and marital status. It involves the care and treatment the applicant and her mother receive in the long-term care facility where the applicant’s mother lives.

2By way of Case Assessment Direction (“CAD”) issued August 1, 2013, the Tribunal directed on its own initiative that a summary hearing be held to determine whether or not the Application has a reasonable prospect of success. The CAD says the Tribunal scheduled this Application for a summary hearing on the basis that “it appears that the applicant may be unable to prove a link to the ground or grounds alleged”.

3The hearing took place by teleconference on February 6, 2014.

4The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address general allegations of unfairness unrelated to the Code. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code. Unfair treatment is not discriminatory in the legal sense unless there is proof that one, or more, of these personal characteristics was a factor in the treatment the applicant experienced.

6The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondents’ version of one or more of the facts.

7Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why she was treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the facts or evidence the applicant is able to point to which tend to support the applicant’s belief that she has experienced discrimination.

8Support for that connection may come in a variety of forms: the timing of events; comments alleged to have been made by the respondents; comparisons with how other people were treated. These are just some examples of circumstances that can play a role in assisting the Tribunal in determining whether the application has a reasonable prospect of success. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application will be found to have no reasonable prospect of success.

9The primary focus in the summary hearing is on the applicant’s proposed evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

10The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

FACTUAL BACKGROUND

11The applicant’s mother lives in a long-term care facility where the personal respondent is a manager. The applicant describes herself and her mother as Hispanic immigrants from El Salvador; the applicant also says she is a single mother.

12The Ministry of Health and Long-Term Care (“the Ministry”) licenses, funds and regulates long-terms care facilities like the one where the applicant’s mother lives. The Ministry appoints inspectors to ensure regulatory compliance. The applicant has made a number of complaints to the Ministry about the care and treatment her mother receives from the long-term care facility. Some of those complaints have resulted in findings of non-compliance on the part of the facility and some have not.

13The Application alleges that on August 28, 2012, the applicant had a conversation with her mother’s roommate while she was in the room her mother shares at the long-term care facility. According to the Application this conversation concerned conflicts the applicant’s mother and her roommate were having regarding the sharing of the washroom and communication problems caused by language barriers. The applicant and her mother both speak Spanish as their primary tongue and the roommate does not. As a result of that conversation the applicant called the Ministry to see if she could obtain a Spanish-speaking individual to be with her mother.

14After speaking with the applicant, the Ministry called the personal respondent. According to the Ministry’s records it did so because during its telephone call with the applicant she said something to the effect that she raised her fist threatening her mother’s roommate. The applicant denies saying this and denies doing it.

15When the personal respondent received this report from the Ministry, he wrote the applicant a letter telling her to stay out of her mother’s room and to visit with her in common areas of the facility.

16The applicant was naturally upset about this sequence of events and complained further.

17On one occasion after this the applicant sought and received permission to enter her mother’s shared room in order to install a telephone. While the applicant was doing this, a staff person saw her and told her she was not allowed to be in that room.

18The long-term care facility lifted the restriction on the applicant’s ability to enter her mother’s room about two months after it came into effect.

ANALYSIS

The Allegations Concerning the Treatment of the Applicant’s Mother

19The bulk of the allegations in the Application are not about the respondents’ treatment of the applicant; rather they are incidents related to the quality of care that the applicant’s mother receives in the long-term care facility where she lives.

20Pursuant to section 34(1) of the Code 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. So applications are usually about how the applicant has been treated, not about how someone else has been treated. However, s. 34(5) says a person can apply on someone else’s behalf if that person consents. The applicant’s mother has not filed the required written consent that would allow the applicant to proceed with the allegations in the Application concerning the treatment of her mother.

21Pursuant to Rule A10 of the Social Justice Tribunals Common Rules, a litigation guardian can act on behalf of a person who lacks capacity to file her own application with the Tribunal. During the course of the summary hearing I asked the applicant if her mother was able to make her own decisions and she told me that she was.

22Given the above, I find the applicant lacks standing to bring the allegations in the Application that concern how the respondents have treated her mother as she has not brought her own application nor consented to her daughter bringing this one on her behalf. As a result, those parts of the Application have no reasonable prospect of success and must be dismissed.

The Allegations Regarding the Treatment of the Applicant

23In addition to the Application, the applicant filed a Rely. On January 29, 2014, she filed and delivered a second Reply. Both Replies contain additional allegations not mentioned in the Application.

24On February 3, 2014, the Ministry wrote to the Tribunal indicating the respondents were in agreement that the applicant’s second Reply should not be before the Tribunal for consideration during the course of the summary hearing.

25At the beginning of the summary hearing on February 6, 2014, I addressed this issue of the scope of the allegations to be considered and indicated to the parties that I intended to consider all of the applicant’s claims. As applicants are able to amend applications with the consent of the Tribunal, at the summary hearing stage it makes little sense not to deal with all of the allegations being made. Further, an individual is entitled to file a second application concerning new events not covered in a first application if they wish. Therefore, the most expeditious way of proceeding is to deal with all of the allegations in one summary hearing, provided the respondent is prepared to proceed on that basis. In response to my question, the respondents indicated they were prepared to proceed, so the hearing continued with respect to all of the applicant’s allegations.

26In the Application the applicant also makes reference to having a disability but disability is not one of the grounds selected. So during the course of the hearing I asked the applicant if she was alleging that her disability might be related to the treatment and behaviour she was complaining of, and her reply was that she did not think so. As a result, I am satisfied that disability is not an issue relevant to this Application.

27The incidents complained of with respect to behavior directed at the applicant as set out in the Application and two Replies are:

• The applicant was unfairly banned from her mother’s room in the long-term care facility managed by the personal respondent because of a false report by the Ministry;

• Both parties failed to investigate the truth of the allegation that resulted in the applicant being banned from her mother’s room;

• The applicant was treated like a criminal by the employee of the long-term care facility who found her in her mother’s room and told her she was not allowed to be there when she had in fact gotten consent from the facility beforehand;

• The long-term care facility will not put her telephone calls through to anyone except the personal respondent;

• An employee from the long-term care facility called the applicant and yelled at her;

• An employee at the long-term care facility was terminated after the applicant praised her performance because she was nice;

• The applicant was not permitted to wash dishes at the long-term care facility;

• On January 10, 2014, the applicant was sitting at a table in the long-term care facility and told to move to a different table by an employee; and

• The applicant is not permitted to use the stove in her mother’s long-term care facility and she has seen workers there permit a white man to borrow the stove key.

28The personal respondent and the Ministry are only involved in the first two of these incidents; the remainder are as against the long-term care facility, which is not a party to this Application. Nonetheless, I asked the applicant about each of them to ensure I understood the totality of her claim. The respondents did not object to my doing so.

29The relevant rights provisions of the Code read as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

2. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

30For each of the incidents set out above I asked the applicant to explain why she believes that it is connected to her race, place of origin, ethnic origin, or marital status. Her answers to those questions were consistent.

31The applicant says first of all she does not have a powerful job and she is from another country so maybe because of that the respondents think they can do anything they want to immigrant people. Maybe they think she does not have rights as a single mother; maybe it is because they think she does not know anything and they can get away with it. The applicant says the respondents did not say anything overt. The applicant concedes it may be that she is just making assumptions.

32The applicant also says that if she were white she does not believe she would be treated the same way. I specifically asked her about the incident concerning the stove; was the white individual in question a family member of a patient like herself, or a repairman or employee of the long-term care facility? The applicant says she does not know. With respect to being denied the use of the kitchen sink, she says she has never seen the long-term care facility permit a white family member of a patient to use it. The applicant says she is not treated with respect and that is not moral; everyone should be treated with respect.

33I agree with the applicant that everyone should be treated with respect, but the Tribunal cannot address general allegations of unfairness unrelated to the Code. An applicant must be able to point to some evidence that there is a connection between the treatment she complains of and the personal characteristics or grounds set out in the Application. The applicant here points to her feelings, assumptions and beliefs and she acknowledges that is the basis for her Application. Feelings, assumptions and beliefs are not factual evidence that the Tribunal can rely on to make a finding of discrimination under the Code.

34As the applicant can point to no evidence of a link between the treatment complained of and the grounds set out in her Application, I find that the Application has no reasonable prospect of success and must be dismissed.

DECISION

35The Application is dismissed.