Gan v. College of Physicians and Surgeons, 2015 HRTO 1045

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peiyu Gan Applicant

-and-

The College of Physicians and Surgeons Respondent

DECISION

Adjudicator: Mary Truemner Date: August 6, 2015 Citation: 2015 HRTO 1045 Indexed as: Gan v. College of Physicians and Surgeons

APPEARANCES

Peiyu Gan, Applicant Yunhong He, Representative

The College of Physicians and Surgeons, Respondent Michelle Gibbs and Carina Lentsch, Counsel

Introduction

1The applicant is an elderly woman who has experienced various health problems requiring medical treatment. Her Application was filed on April 9, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) which lists Ms. He, the applicant’s daughter, as her representative. The applicant made a variety of allegations of discrimination against several respondents with respect to goods, services and facilities. The allegations articulated appeared to be connected to complaints by the applicant or Ms. He made to the College of Physicians and Surgeons (“the respondent”) about the applicant’s doctors that the respondent’s Inquiries, Complaints and Reports Committee (“the Committee”) investigated and decided were not substantiated.

2There have been several teleconference hearings held in advance of the hearing of this matter. Following these teleconference hearings, all allegations in the Application and in written and oral submissions against all originally named respondents were dismissed by Interim Decisions, 2013 HRTO 1888 and 2014 HRTO 1324, except for one allegation against the the respondent that Ms. He had described during a summary hearing and clarified in submissions. This one remaining allegation is that when Mark Bellefontaine, one of the respondent’s investigators, visited the applicant at her nursing home, he refused to allow her to file a complaint against a doctor (“the doctor”) because she has a disability, and instead expected that Ms. He be the one to file any complaint on her behalf.

3A hearing was held on February 25, 2015. The applicant was not present. Ms. He and Mr. Bellefontaine testified about his alleged refusal to allow the applicant to file a complaint.

Preliminary issues and requests

4There were several preliminary issues that the respondent raised prior to and at the hearing. One of them was the respondent’s identification of a decision of the Superior Court, The Public Guardian and Trustee v. Gan et al., 2014 ONSC 2145, (April 3, 2014) that refused to allow Ms. He to be the applicant’s guardian of the person and appointed the Public Guardian and Trustee as the guardian under s.55 of the Substitute Decisions Act 1992, S.O. 1992 c.30. The Tribunal decided that there was no action required at the hearing as a result of that decision for the reasons that 1) that court decision dealt with Ms. He’s attempted role as the applicant’s guardian of the person, not her role as representation of the applicant in litigation; 2) the respondent took no position with respect to whether that decision determined Ms. He’s ability to represent her mother; and 3) Ms. He confirmed that her mother had provided consent to Ms. He to allow Ms. He to represent her.

5The parties ultimately agreed at the hearing that they need not make submissions on the other preliminary issues: the issue of whether the remaining allegation was out of time, and the issue of whether s.38 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended (”RHPA”), protects that respondent from being ordered to pay a monetary remedy in the event that the Tribunal finds good faith. To ensure an expeditious process, the Tribunal directed that those preliminary issues would be dealt with after the Tribunal issued its decision on whether the applicant proved that the investigator refused services because she is disabled. Given my finding that the Application is dismissed, for the reasons below, there is no need to resolve the additional preliminary issues or to receive any further submissions with respect to them.

code provisions

6Section 1 of the Code states:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of … disability.

7Section 9 states:

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

8The issue here is whether the respondent infringed the applicant’s right to equal treatment without discrimination by refusing to allow her to file a complaint about a doctor because of disability.

evidence

Ms. He’s Evidence

9Ms. He testified that she submitted a written complaint to the respondent about the doctor approximately 10 days before Mr. Bellefontaine came to the applicant’s nursing home on September 27, 2010. The complaint consisted of Ms. He’s letter and her completion of the respondent’s form. In cross-examination, the applicant initially said that she was unable to remember if she identified herself as the person making the complaint, indicating that she was the patient’s daughter, but she reviewed a copy of her complaint to refresh her memory, and confirmed that this was the case. Her complaint was not made an exhibit at the hearing because section 36(3) of the RHPA provides that no report or document prepared for a proceeding under the RHPA is admissible in a civil proceeding.

10Soon after Ms. He submitted the written complaint in September, 2010, Mr. Bellefontaine telephoned her and asked if she had Power of Attorney (“POA”) for her mother. She told him that she did not, but that she was her mother’s substitute decision maker (“SDM”). He then asked Ms. He if she could prove it, and when she said that she could not, he told her that she therefore could not file a complaint on behalf of her mother. She protested given that the nursing home in which her mother lived allowed her to make decisions on behalf of her mother. She also said that her mother could sign the complaint herself because she was able to understand if given enough time. Mr. Bellefontaine explained that he wanted to see if her mother was able to do so herself, and arranged to meet her at the home on September 27, 2010.

11Mr. Bellefontaine brought an interpreter to the September 27, 2010 meeting. Ms. He testified that she could not remember if the interpreter was a man or a woman, testifying, “I can only remember the most disappointing things in my mind.” While she expressed some uncertainty about whether Mr. Bellefontaine went into the applicant’s room at the home, Ms. He testified that she watched him spend about 10 minutes with the interpreter trying to speak with her mother, but her mother did not respond, even though her eyes were open. Mr. Bellefontaine told Ms. He that her mother was disabled and could not file a complaint. She asked Mr. Bellefontaine to give her mother more time, and cannot remember what he said. She then left the room with him, and explained that she was her mother’s SDM, getting a nurse at the nursing station to agree with her. She testified that a social worker at the nurse’s station said that she was her mother’s SDM, but still Mr. Bellefontaine was not satisfied. He said that without a POA, she could not file a complaint on her mother’s behalf, and neither the nurse, the social worker nor Ms. He could produce a document to satisfy Mr. Bellefontaine, so he left the home.

12Ms. He then noticed on the respondent’s website that a patient’s next-of-kin could file a complaint against a patient’s doctor. She therefore telephoned Mr. Bellefontaine, probably still in September 2010, and told him that the website indicated she could file a complaint as the patient’s daughter. He asked her to mail the respondent her birth certificate to prove her relationship. She did, and the respondent accepted and processed the complaint, but treated it as Ms. He’s complaint, not her mother’s.

13Ms. He testified that she remembers that she received a letter from Mr. Bellefontaine dated September 29, 2010 that she signed and mailed back to him on October 6, 2010. This provided consent for the respondent to contact the doctor who was the subject of the complaint, and to have him release medical information about the applicant. She also included her birth certificate. She was cross-examined about the possibility that the requirement for the birth certificate was in order for the respondent to obtain consent for the release of medical information, but Ms. He said that she thought the requirement was in order for Ms. He to file a complaint.

14Ms. He testified that her mother did not file any documents with the respondent, nor talk to anyone who worked there. The only time the applicant had any meeting with someone working with the respondent was when Mr. Bellefontaine came to the home on September 27, 2010.

15Ms. He confirmed that the respondent’s Committee determined that the allegations in the complaint about the doctor were unsubstantiated, and an appeal to the Health Professions Appeal and Review Board upheld the respondent’s decision.

Mr. Bellefontaine’s Testimony

16Mr. Bellefontaine testified that he is an investigator with the respondent, with additional duties as a recruiter. His duties include obtaining information to assist the Committee to review and make a decision with respect to complaints against doctors. He explained that anyone can make a complaint, not just patients. Once it is in a permanent form such as in writing or in a video, a file is opened and an investigation is commenced.

17Normally, Mr. Bellefontaine’s manager assigns him clinical complaints. He speaks to the complainants to give information, to obtain information and to talk about next steps. No consent is required to accept a complaint, so that if the complainant is not the patient, he will speak to the complainant about how to obtain consent to release or discuss medical information. Where the complainant is the patient, the consent to release is more straightforward.

18Mr. Bellefontaine testified that on the day he met Ms. He at the applicant’s nursing home, he gave her a form called, “Information About Signing Consent for the Complaints Process”. He identified the form at the hearing. I note that the form is really a question and answer information sheet which contains the following paragraph:

Yes. If you are complaining about someone else’s medical care, the ICRC requires a consent from the patient or the patient’s legal representative to release the patient’s confidential medical information to you. Without this consent, neither the investigator nor the Committee can provide the patient’s confidential medical information to you.

If you are the patient’s legal representative, you need to provide a copy of the legal document that gives you legal authority to sign consent (examples: Last Will and Testament, Certificate of Estate Trustee with a Will, Certificate of Estate Trustee without a Will, Custody Order, Power of Attorney for Personal Care, or sufficient proof that you are the next of kin).

19Mr. Bellefontaine testified that when someone is filing on behalf of the patient, he asks for consent forms to be signed and documents to be produced showing the person is the SDM. While there is a formal process to obtain medical records without the consent of the patient, such a process is a last resort and investigators prefer the patient to be involved.

20Mr. Bellefontaine testified that he was assigned in September 2010 to the complaint filed by Ms. He about the doctor who treated the applicant. Mr. Bellefontaine said that, given the identification in the complaint that Ms. He was the complainant, he treated the complaint as Ms. He’s, even though she was not the patient, and he telephoned her within approximately three days of being assigned the file. He indicated to Ms. He that he understood that she was the SDM for her mother and asked for the documents confirming this. He testified that it was a difficult discussion, and he had to repeat several times why he needed consent to access medical information, but Ms. He would not agree that he needed consent.

21Mr. Bellefontaine testified that investigators typically like to talk to the complainant and the patient at the same time so that the patient understands that consent is being given for the release of his or her medical information. The investigator does not make an effort, however, to have the patient become the complainant.

22In this case, given that Ms. He did not appear to have documents confirming her status as SDM, he decided that it was appropriate for him to speak to the applicant who Ms. He confirmed had capacity to make her own decisions. Ms. He told him that the applicant only spoke Cantonese, so he asked her if he could visit the applicant with a colleague who speaks Cantonese. Ms. He agreed, and invited them to her mother’s home. Mr. Bellefontaine testified that he told Ms. He in their telephone conversation that he would provide the applicant with forms to sign allowing the release of her medical information so that the respondent could access that information.

23Mr. Bellefontaine believes that it was a few days after this call that he went to the applicant’s nursing home with his colleague at the end of September 2010. They arrived on time, but Ms. He was not in the lobby so they went outside to wait. Fifteen minutes later, Ms. He arrived, and she took them to her mother’s room. He described the room, noting that the applicant was sitting in front of the window in what he understood to be a geriatric chair, with her back to them as they entered. They initially could not even see the top of her head. He testified that they moved closer, and he explained to the applicant who he was and that he was there to have the consent forms signed for the release of her medical records. His colleague spoke to her in Cantonese. He testified that the applicant did not look at them, did not speak and did not make any movement. She never responded to anything said to her. Ms. He then spoke to her mother, but Mr. Bellefontaine observed that the applicant made absolutely no response to her either. Ms. He then told him that the nursing station would have the necessary documents to prove that Ms. He was the SDM.

24They went to the nursing station, and Mr. Bellefontaine was present when Ms. He asked if there was something in the nursing home’s file that she could show Mr. Bellefontaine to prove that she was the SDM. He listened to the staff at the nursing station explain that there was not, and that they were also waiting for documents. He suggested to Ms. He that maybe the social worker at the home would have the SDM paperwork. He told Ms. He that if the social worker did not, then Ms. He should contact him to discuss how to proceed. He never met the social worker or spoke with one, and was no more than five minutes at the nursing station. This visit to the home was the only time that he met in person with Ms. He or the applicant, and it was the only time that he tried to communicate with the applicant.

25Mr. Bellefontaine testified that he never said to the applicant or Ms. He that the applicant was disabled, nor did he tell either of them that either of them could not file a complaint. The investigation was ongoing with or without the consent to release medical information, and any disability that the applicant might have was not a factor in whether the respondent would or could investigate a complaint about the doctor.

26Mr. Bellefontaine remembered that the day after visiting Ms. He and the applicant in the nursing home, Ms. He called to say that she had spoken with the social worker and did not believe that she needed a document because it was just common sense that she should be able to sign for her mother. He told her that he agreed with her that as the applicant’s next-of-kin, Ms. He could provide consent for the release of medical information. Ms. He told him that she had a brother, and he suggested that the brother might consent as well because it is typical to have more than one person involved when more than one person is claiming next-of-kin. He remembers the phone call particularly because Ms. He was yelling at him constantly, telling him that he was “making stuff up”, and that he had no common sense. He testified that he did not make any comment in the phone call that Ms. He or the applicant could not file a complaint. Other than this phone call, the nursing home visit, and the phone call prior to the visit, Mr. Bellefontaine had no other oral conversations with Ms. He.

27Mr. Bellefontaine next received Ms. He’s birth certificate proving that she was the applicant’s daughter, and Ms. He’s signed consent to release the applicant’s medical information.

28Mr. Bellefontaine then prepared a letter setting out the complaint about the doctor as the respondent understood it. Using the consent form authorizing the release of the applicant’s medical information signed by Ms. He, Mr. Bellefontaine obtained the applicant’s medical information from the doctor, and the investigation ended with a decision by the Committee.

Ms. He’s Reply Evidence

29After Mr. Bellefontaine testified, Ms. He provided evidence in reply. She then testified that perhaps she had not been accurate in her earlier testimony because “maybe” Mr. Bellefontaine did suggest to her that she seek out the social worker, and “maybe” the social worker was not at the nursing station when Mr. Bellefontaine was present, but that the social worker at some point told at least her that she was the SDM even if there was no document to that effect. In cross-examination during her reply evidence, Ms. He clarified again, and said that she was sure that she went to the social worker after Mr. Bellefontaine had left the home.

30Ms. He also testified in reply that after Mr. Bellefontaine visited the nursing home, she did argue with him on the telephone because she was very unhappy that she needed documentation to be the SDM given that the nursing home already recognized her as one.

analysis

31As stated above, the only remaining allegation in this Application is whether the respondent refused to allow the applicant to file a complaint about a doctor because she has a disability. Ms. He explained that this allegation is based on Mr. Bellefontaine’s statement allegedly made at the home. Ms. He explained that her mother wanted the respondent to recognize her mother as the complainant initiating the investigation into the doctor’s alleged misconduct, and not Ms. He as the complainant on her behalf.

32The applicant bears the responsibility of proving the discrimination on a balance of probabilities. I therefore must first determine whether the evidence proves, on a balance of probabilities, that Mr. Bellefontaine refused to allow the applicant to make a complaint for the reason that she has a disability.

33Mr. Bellefontaine’s version of his dealings with the applicant and Ms. He was consistent with his position that he had understood that Ms. He was the complainant. He described how he understood, from his dealings with Ms. He, not that she wanted her mother to be the complainant instead of herself, but that she was taking issue with the requirement that she formally prove her SDM status, or other documented status, to provide consent for the release of the applicant’s medical information; otherwise, another process was appropriate whereby she would need to prove she was next-of-kin, and then provide consent for the release of the medical information on behalf of her mother.

34The way in which the complaint was processed is consistent with this version given that 1) the witnesses agreed that the actual complaint prepared by Ms. He does list Ms. He as the complainant; 2) Ms. He, in her testimony, made clear that she tried to persuade Mr. Bellefontaine that she should be the recognized SDM without having to show him documentation; and 3) Ms. He did provide her birth certificate and did sign consent for her mother’s medical information to be released.

35Furthermore, both witnesses agreed that the applicant did not in any way register or respond to Mr. Bellefontaine’s attempts to communicate with her in English, to his colleague’s attempts in Cantonese, or even to Ms. He’s attempts to communicate with her mother. There is no question that Mr. Bellefontaine therefore needed consent from Ms. He for the release of the applicant’s medical information. All of this is consistent with Mr. Bellefontaine’s version of how he dealt with the complaint and why.

36The applicant’s only witness, Ms. He, testified that after Mr. Bellefontaine tried to speak with the applicant, Ms. He heard Mr. Bellefontaine say that the applicant could not file a complaint against the doctor because the applicant is disabled. Mr. Bellefontaine testified that he said no such thing. Given this contradictory evidence, I must therefore assess the credibility and reliability of the witnesses and their evidence.

37In evaluating reliability and credibility, I rely on the following propositions frequently cited in decisions of this Tribunal and summarized in Turner v. Black Palm Aviaries of Canada Inc. o/a The Loan Arrangers, 2015 HRTO 52, at para. 41:

1. “When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony.” Reliability is influenced by a witness’s ability to “accurately observe, recall and recount” events. Credibility goes to the propensity to tell the truth or the “sincerity” of the witness. See, R. v. Morrissey, 1995 CanLII 3498; 97 C.C.C. (3d) 193 (ON C.A.) at p.205;

2. Credibility can be determined by evaluating whether the story provided by the witness is consistent with the “preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions:” See, Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.);

3. In evaluating the credibility or reliability of evidence, one looks to a number of interrelated factors such as its probability, logical connection with other findings and support from independent evidence. In evaluating the credibility of a witness, one looks to such factors as the ability to “perceive and recall,” level of candour (or evasiveness) and “attitude towards the parties.” See, Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, at para. 54; …

38Mr. Bellefontaine’s testimony was consistent throughout, and many details he described were consistent with Ms. He’s testimony as well. For example, Mr. Bellefontaine remembered details about the visit at the nursing home which Ms. He did not, but, after hearing him testify, she later agreed with those details, in particular, his description of the nursing station, his recollection that he suggested that the applicant speak with the social worker, and that he never met or spoke to the social worker. Ms. He altered her own testimony about that issue twice.

39Ms. He’s testimony about the meeting at the nursing home was less than clear. She thought that the meeting might have been in her mother’s room, but that it was a long time ago and she couldn’t really remember. She concluded that the meeting was “most likely” in her mother’s room. She could not remember if the person Mr. Bellefontaine brought was a man or a woman, and she explained that she could only remember things that were disappointing to her.

40Ms. He also testified that she did not remember the exact words that Mr. Bellefontaine used after her mother did not respond to him, to his colleague or to her the day of the visit at the nursing home. Ms. He testified, however, that she understood Mr. Bellefontaine’s words to mean that her mother could not file a complaint because of her disability.

41In conclusion, with respect to the allegation that Mr. Bellefontaine said that he would refuse a complaint by the applicant because she is disabled, I prefer Mr. Bellefontaine’s evidence over the evidence of Ms. He:

1. Mr. Bellefontaine adamantly denied saying he would not accept a complaint by the applicant because she is disabled, whereas Ms. He said that she could not remember his exact words;

2. Mr. Bellefontaine was able to describe in more and better detail the day of the visit to the nursing home than was Ms. He;

3. It is reasonable and logical that Mr. Bellefontaine understood that Ms. He was the complainant because that is what she indicated on the complaint form, and therefore it is reasonable that he understood that he needed consent from the applicant for the release of her medical information as per the information sheet that he gave to Ms. He, or from her legal representative;

42I find that Mr. Bellefontaine did not say that he would not accept a complaint from the applicant because she is disabled. I find that the evidence is consistent with his version of events and his understanding that Ms. He’s concern was that she wanted to be accepted as the applicant’s SDM for the purposes of the release of the applicant’s medical information required for the investigation into the alleged misconduct of the doctor, not that she wanted her mother to be recognized as the complainant rather than her.

43Having found that the applicant failed to establish that Mr. Bellefontaine said that she could not file a complaint with the respondent because she is disabled, I can see no evidence that the respondent discriminated against the applicant because of disability in the area of services. I find that Ms. He misinterpreted Mr. Bellefontaine’s words that he used to explain his inability to obtain the applicant’s consent for the release of medical information. I find that Mr. Bellefontaine reasonably understood that it was Ms. He who filed a complaint against the doctor on her mother’s behalf, that he reasonably understood that the applicant was unable to provide consent for the release of her medical information, and that he reasonably understood that Ms. He could provide consent because she was the applicant’s next-of-kin. The respondent obtained Ms. He’s consent and processed the complaint filed by her against the doctor treating the applicant. There was no evidence at the hearing to establish that Mr. Bellefontaine was aware that Ms. He wanted her mother recognized as the complainant.

44While it may be possible in certain circumstances for an applicant to establish discrimination on the basis of differential treatment in the context of being refused “complainant” status because of a disability, I find the applicant here has not provided any evidence that she was not permitted to be the complainant because of her disability. I therefore find that there was no discrimination contrary to the Code in the services the respondent provided.

no next step

45Having found that the evidence does not establish that the respondent discriminated against the applicant, I find that there is no need for the parties to file submissions with respect to the respondent’s various requests, including its request with respect to delay.

order

46The Application is dismissed.