HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Paul Conway
Applicant
-and-
St. Joseph’s Healthcare Hamilton
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Conway v. St. Joseph’s Healthcare Hamilton
APPEARANCES
Paul Conway, Applicant
Self-represented
St. Joseph’s Healthcare Hamilton, Respondent
Janice Blackburn, Counsel
Procedural History of these Applications
1The applicant is a patient detained in the respondent’s Secure Forensic Unit. Throughout this process the applicant has had the assistance of the Psychiatric Patient Advocate Office, though it maintains that it does not represent him.
2The applicant filed Application 2012-12345-I (“Application 12345”) on August 24, 2012 in which he alleges that he was discriminated against on the basis of sex and sexual solicitation and advances with respect to the conduct of a fellow patient, which the applicant says was not addressed by the respondent. The Application also named the Ontario Review Board-Ministry of Health and Long-Term Care as a respondent to the Application. On November 26, 2012, the Tribunal issued Interim Decision 2012 HRTO 2208 which dismissed the Application as against the Ontario Review Board-Ministry of Health and Long-Term Care based on the doctrine of judicial immunity.
3On September 24, 2013, after an unsuccessful mediation, the Tribunal issued a Case Assessment Direction which directed that at its own initiative that a summary hearing would be held with respect to Application 12345. On June 5, 2014, the Tribunal issued Interim Decision 2014 HRTO 830 which allowed the Application to proceed to a hearing on the merits. The hearing was scheduled to proceed on February 27, 2015.
4On June 3, 2013, the applicant filed Application 2013-14641-1 (“Application 14641”) in which he alleges discrimination on the basis of sex, sexual solicitation or advances, sexual orientation, gender identity and gender expression. There are two allegations, the first is an allegation against the same fellow patient and the second is that Dr. Joseph Ferencz made a discriminatory comment to the applicant in mid-July 2012. In the Response filed by the respondent on October 21, 2013, the respondent admitted that Dr. Ferencz made the comment but denied that the comment was a contravention of the Code.
5On November 4, 2014, after a second unsuccessful mediation, the Tribunal issued a letter to the parties, in which it sought submissions on the issue of whether Application 12345 and 14641 should be consolidated. On November 13, 2014, the respondent wrote to the Tribunal to advise that it agreed that these two Applications should be consolidated but the distinct allegations as against Dr. Ferencz should be severed as this was a discreet issue that could be dealt with by way of teleconference.
6On December 3, 2014, the Tribunal issued a Case Assessment Direction which directed that the two Applications would be consolidated and that both would proceed to hearing on February 27, 2015. The Tribunal advised the parties that a case management telephone conference would be convened to discuss, amongst other things, the manner in which the Tribunal would hear the evidence of Dr. Ferencz.
7At the outset of the conference call the applicant requested that the matter not be heard by the male adjudicator who had been assigned the matter throughout. On December 12, 2014, the Tribunal issued a Case Assessment Direction in which it directed that the matter would be reassigned to a female adjudicator.
8The Applications were reassigned to me and on January 9, 2015, I issued a Case Assessment Direction (the “January 9 CAD”) to the parties to deal with a number of issues including that the applicant had filed a third Application bearing file number 2014-17652-I (“Application 17652”) on May 7, 2014, in which he alleged discrimination on the basis of race, colour, ethnic origin and disability when he was denied the opportunity to attend a service in honour of nursing appreciation week and was denied a doughnut. The respondent raised in its Response to this Application that it was not within the Tribunal’s jurisdiction because it was not filed within one year of the incident of alleged discrimination. The Tribunal had scheduled a third Mediation in February 2015. In the January 9 CAD I stated at paras. 5-7:
I am of the view that it may be appropriate for the Tribunal to consolidate Application 2014-17652-I with Applications 2012-12345-I and 2013-14641-I. Currently, there is an in-person merits hearing scheduled on February 27, 2015, in Hamilton with respect to Applications 2012-12345-I and 2013-14641-I. Having considered the matter it may be appropriate for the Tribunal to cancel the in-person hearing and convert the matter to a telephone hearing which would address only two narrow issues:
a. Whether Application 2014-17652-I was filed within one year of the last incident of alleged discrimination. The parties may be required to call evidence on the issue of when the alleged incident actually occurred; and
b. The allegations as against Dr. Ferencz as contained in Application 2013-14641-I. It appears that there is some agreement between the parties with respect to these events. The parties could also make submissions on whether this conduct constitutes a breach of the Code and if so what remedies, if any, should be awarded by the Tribunal.
I am of the view that the two above-noted issues are distinct from the other allegations in the Applications and that hearing any evidence with respect to these issues could easily be obtained over the telephone, and that perhaps any of the respondent’s evidence could be tendered through sworn affidavits and the applicant having the right to cross examine these witnesses. However, I would like the parties’ comments with respect to these issues and they must file their submissions by January 19, 2015
Directions
The Tribunal directs as follows:
a. The Mediation scheduled on February 2, 2015 is cancelled;
b. By no later than January 19, 2015;
i. The applicant must deliver to the respondent and file with the Tribunal a Reply to the Response filed with respect to Application 2014-17652-I which addresses the issues raised at paragraph 4 of this Case Assessment Direction. If the applicant does not file this Reply then Application 2014-17652-I may be dismissed as abandoned; and
ii. The parties must file their submissions with respect to whether Application 2014-17652-I should be consolidated and the proposed severance of the issues identified at paragraphs 5 and 6 of this Case Assessment Direction.
9After the applicant did not file his submissions as directed the Tribunal convened a conference call on January 28, 2015 and I issued the next day another Case Assessment Direction which states at paras 1 - 6:
The purpose of this Case Assessment Direction is to confirm to the parties the directions that were made during a conference call on January 28, 2015.
The Tribunal made the following directions:
a. Applications 2012-12345-I; 2013-14641-I and 2014-17652-I are consolidated;
b. The hearing scheduled on February 27, 2015 is converted to a telephone hearing;
c. The telephone hearing on February 27, 2015 shall deal with the following two issues:
i. Whether Application 2014-17652-I is within the jurisdiction of the Tribunal and whether it was filed within one year of the last incident of alleged discrimination; and
ii. The allegations as against Dr. Ferencz as contained in Application 2013-14641-I. The parties should be prepared to call evidence on this issue, and make submissions on whether this constitutes a breach of the Code, and if so, the nature of the appropriate remedy.
d. The applicant must deliver to the respondent and file with the Tribunal a Reply to the Response filed with respect to Application 2014-17652-I by February 9, 2015, explaining why he believes that the incident referred to in the Application occurred on May 6, 2013, and he must include any evidence in support of his position. The applicant must also identify the names of the white patients who he alleges where permitted to attend the event. If the applicant does not file this Reply then Application 2014-17652-I may be dismissed as abandoned;
e. The respondent must file any Affidavit, which includes documents relied upon, with respect to whether Application 2014-17652-I is timely by February 12, 2015. The respondent must ensure that these witnesses are available to participate at the February 27, 2015 telephone hearing;
f. By February 12, 2015, the respondent must provide to the Tribunal an Affidavit from Dr. Ferencz and ensure that he is available to be cross-examined by the applicant on February 27, 2015. If the respondents wish to call any other evidence on this issue then this is also due on February 12, 2015.
g. The parties are relieved from providing any further documents and/or witness statements that do not relate to the two issues identified at paragraph 2(c).
Pursuant to the Tribunal’s Rules and the Code, it is my obligation to ensure that the parties are provided with a fair and efficient process. I am of the view that neither party is in a position to deal with the other issues identified in the Applications. I have determined that the two issues that I have bifurcated can be dealt with by way of telephone conference.
During our telephone conference, the applicant would often interrupt me, yelled and accused me of being rude. As an adjudicator, it is my role to ensure that the parties remain focussed on the issues at hand. In controlling this process, I have the power to ask a party to stop talking if I am of the view that they are not answering my question, being repetitive and/or addressing irrelevant issues. My expectation is that parties will comply with my directions. Though I have the ability to interrupt parties to give them directions, there is an expectation that the parties not interrupt the adjudicator. The Tribunal’s process is dependent on the parties treating the Tribunal and each other with respect.
Often during a hearing a party may not agree with a decision made by the adjudicator, however, this is not an opportunity for a party to scream and yell at the Tribunal. The expectation is that the party will continue to treat the adjudicator with respect.
I trust that the applicant will comply with his obligation to treat the Tribunal and the other parties with respect and be courteous throughout the proceedings.
10The applicant did not comply with the directions in the January 9 CAD.
11The hearing was convened February 27, 2015. On March 12, 2015, I issued the following Case Assessment Direction (“CAD”), at paras. 7 – 15 and 20:
The February 27, 2015 Hearing
On February 27, 2015, the hearing commenced at 10 a.m. I advised the parties that I wanted to deal with the following above-noted issues, but that I also wanted to talk to the parties as to the required next steps.
When I asked Mr. Conway to advise whether any materials had been filed, he responded that I should ask the respondent because it knows. I told Mr. Conway to respond to my questions, but he repeatedly refused saying that they know. Eventually, Mr. Conway advised that Application 2014-17652-I was a non-issue and that he agreed that it was filed outside of the one year time limit and that he was not proceeding with that Application, but would be filing criminal and/or civil proceedings. I therefore orally dismissed Application 2014-17652-I. This Application shall be removed from the style of cause of any future decision.
The allegation as against Dr. Ferencz was that he greeted Mr. Conway and another client by stating “Hello ladies”. There was no dispute from the respondent that this comment had been made to the applicant.
I asked Mr. Conway whether he wanted to testify and he said yes. However, it became almost impossible to administer the affirmation to Mr. Conway. When I asked Mr. Conway whether “He promised to tell the truth” he would interrupt me and would become very angry. He did not listen to my explanations as to the meaning of the affirmation. He accused me of calling him a liar and viewed this requirement as an insult because I was suggesting that he lies. Notwithstanding this conduct, after careful consideration, I determined that the applicant understood that he had the obligation to tell the truth and that I could proceed to hear his testimony.
The applicant testified with respect to the comment made by Dr. Ferencz. The applicant advised that he did not want to cross-examine Dr. Ferencz, but that he wanted to call medical evidence that he does not have a mental health disability as is alleged by the respondent. I advised the applicant that this was not a relevant issue at this stage though it may become an issue at a later time.
After permitting the respondent to make its submissions I asked the applicant if he wanted to say anything. During the course of his response, he referred to the terms “bitch” and “faggot”. I asked the applicant to please not use that language during the hearing. At this point the applicant started yelling and screaming that he had done nothing wrong. I tried to interject to calm Mr. Conway, but he stated that I was not impartial and that he wanted another adjudicator to hear the case. Mr. Conway continued to scream at me until I advised over his screaming that we were taking a five minute break.
When we reconvened, I advised that I did not need to hear any further submissions with respect to the issue of Dr. Ferencz’s comment. However, I wanted to hear the parties input with respect to when they could deliver the remainder of their hearing materials and witness statements. I also inquired whether there was a location at the respondent which could accommodate the hearing of this matter.
The respondent advised that there was a room that was available for a hearing. I advised the respondent that the registrar would contact the respondent to make the necessary arrangements including whether a commissionaire would be retained.
At this point the applicant became very angry. He said that he did not want any security present in the hearing room. He was yelling and screaming that he was being set up so that the police would be called on him and that he would rather abandon his Applications. It was impossible to get a word in edgewise. Eventually the applicant said he was leaving. I told Mr. Conway that if he left the hearing there could be consequences. He screamed that I could not call the police because he had done nothing wrong. I advised him that I had no intention of calling the police, but that if he left during the course of the hearing it was possible that his Application might be dismissed as abandoned. He continued to yell at me and after he said that “I was crapping all over him” I stopped the hearing.
In light of the foregoing the Tribunal directs the parties to provide their submissions on the whether this matter can continue or whether it should be dismissed on the basis of abuse of process in light of the conduct described above, as follows:
a. Within 14 days of this CAD the applicant must deliver to the respondent and file with the Tribunal his written submissions, if any. If the applicant takes the position that it would not be an abuse of process to proceed with these Applications then he must indicate whether he is prepared to confirm in writing that he will comply with directions of the Tribunal and with his obligations under the Tribunal’s Rules, including Rule A7.1; and
b. Within 14 days of the receipt of the applicant’s submissions the respondent can make its written submissions on this issue and respond to the applicant’s submissions.
The allegations as against Dr. Ferencz
12Since I have heard the parties’ evidence and submissions with respect to the allegations made against Dr. Ferencz in Application 14641, I will determine the issue of whether the applicant has proven on a balance of probabilities that his rights under the Code have been infringed.
13There is agreement about the chronology of these events. The parties agree that Dr. Ferencz greeted the applicant and another patient by saying the words “hello ladies” in a friendly manner in mid-July 2012. The applicant did not tell Dr. Frencz that he was offended by this remark. However, the next day the applicant did complain to the patient advocate that he was upset by this comment. The parties agree that Dr. Ferencz immediately apologized to the applicant. The applicant did not include this allegation of discrimination when he filed his first Application 12345 in August 2012. He did include this allegation in his second Application which was filed in June 2013, almost 11 months later. The applicant explained that he was deeply offended that this comment was made because he is male and not female. Then the applicant went into some detail that though there are other clients on the ward who are homosexual he is not. He discussed that the other patient is well known to “swing both ways”. He also explained that it is unfair that he is incarcerated and that Dr. Ferencz is free to go about in the community while he is not able to do so. He believes that it is unfair that Dr. Ferencz tells the Ontario Review Board that the applicant flirts with women and then makes these types of comments. He is of the view that there has been a break down in the patient-client relationship because of this comment and that he has stayed with Dr. Ferencz because he has very limited choices. The applicant wants to be compensated $10,000 dollars.
14Dr. Ferencz explained in his Affidavit that he made this comment in a joking manner and that he was surprised to find out the next day that the applicant was offended by the patient advocate since at the time the applicant did not seem upset. He immediately went to apologize to the applicant the next day and the matter was never discussed again between them.
15This Application relates to a service relationship between Dr. Ferenzc and the applicant. Section 1 of the Code states:
- 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.
16The issue that I must determine is whether the comment made by Dr. Ferencz infringed the applicant rights under the Code. The Tribunal has stated in the past that a single comment can be a breach of the Code depending on the circumstances of the case. See: Haykin v. Roth, 2009 HRTO 2017 (“Haykin”). In that case, the Tribunal also found that though there are no explicit sections in the Code prohibiting harassment with respect to services that harassment is a form of discrimination as contemplated by section 1. In Haykin the Tribunal also found that it is not the role of the Tribunal to monitor the parties’ use of language including vulgarities.
17In determining whether a single comment can constitute a breach of the Code, the Tribunal should consider on an objective basis the nature of the comment, its common usage, and whether it is linked to a prohibited ground. Further, in my view it is not sufficient to isolate the comment but the Tribunal must also consider the circumstances under which it was said including a respondent’s response to an applicant’s objection to the comment. It is not sufficient for applicants to subjectively establish that they were offended by the comment, but remains the Tribunal task to determine whether the comment is so egregious that it constitutes discrimination as contemplated by the Code.
18In this case, I am not satisfied that the comment “hello ladies” is discriminatory. I am of the view that, on objective review of the facts, this comment was made in passing and in jest. The applicant did not object to the comment at the time. Based on an objective standard I cannot find that the words “hello ladies” could be in these circumstances construed to be discriminatory. Further, as soon as Dr. Frencz found out that the applicant was offended he immediately apologized. In my view this should have been the end of this issue. The Tribunal therefore dismisses this allegation.
Abuse of Process
19The Tribunal has the power, pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, to make such orders or give such directions in proceedings before it as it considers proper to prevent abuses of its process. Where appropriate, the Tribunal has applied this power to dismiss Applications where parties have engaged in abusive conduct in the Tribunal’s process. See for example Nouraghighi v. Toronto Catholic District School Board, 2009 HRTO 2085; Vizcaya v. University of Toronto, 2010 HRTO 916; and Cameron v. Ontario (Training, Colleges and Universities), 2013 HRTO 945.
20Rule A7.1 of the Social Justice Tribunals Ontario Common Rules, found in Part 1 of the Human Rights Tribunal of Ontario’s Rules of Procedure confirms basic obligations of the parties in terms of their conduct in proceedings before the Tribunal:
All persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.
The authority to make such orders as it considers appropriate to prevent an abuse of process is also reflected in the Tribunal’s Rules of Procedure:
A8 ABUSE OF PROCESS
A8.1 The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
A8.2 Where the tribunal finds that a person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the tribunal may find that person to be a vexatious litigant and dismiss the proceeding as an abuse of process for that reason. It may also require a person found to be a vexatious litigant to obtain permission from the tribunal to commence further proceedings or take further steps in a proceeding.
21In this case, I gave the applicant the opportunity of making submissions on the issue of whether I should dismiss his remaining Applications on the basis that his conduct is an abuse of the Tribunal’s process.
22The applicant wrote in stating that he “has no problem conducting himself properly as long as all others concerned in the hearing reciprocate. I should reasonably expect others to be mindful to my predicament, in that, I have been predisposed to an entire lifetime of abuse that stems from a variety of sources. Particularly, this could potentially have an effect on my bearing if I am put under unnecessary and unfair pressure. I expect fairness of the law to be applied to me.” The applicant also advised that he would be attempting to secure legal representation. As of this date this has not occurred.
23The respondent filed submissions in which it takes the position that the Applications should be dismissed as an abuse of process. It is of the view that the applicant has conducted himself an abusive manner in an effort to manipulate the process of the Applications so that a third adjudicator be assigned. They note that the applicant has already had the previously assigned adjudicator recuse himself. They are of the view that the applicant is trying to intimidate me through his abusive conduct because I have attempted to control the hearing process.
Decision
24An adjudicator at the Tribunal is dependent on the parties treating both the adjudicator and the process with respect. Without that respect there can be no order in the proceedings. My task is to ensure that the parties have a fair hearing, that they are able to make submissions and present evidence on relevant issues. In this case, the applicant has engaged in conduct which has in my view made it impossible for me to continue with the hearing of these Applications. I have been unable to maintain order throughout the proceeding. The applicant refuses to answer simple questions that I pose to him such as why he did not file submissions as required. Similarly problematic was the applicant’s violent protest to being sworn or affirmed to tell the truth before giving testimony; an otherwise straightforward procedural obligation of any party or witness before giving evidence.
25Further, it was entirely appropriate for me to ask the applicant to refrain from using the word “faggot” and “bitch” to describe homosexuals and women. Instead of simply acknowledging this fact the applicant became abusive and accused me of bias. He became so upset, yelling and screaming, that the hearing had to be stopped. The applicant’s conduct after we reconvened did not improve and was so disruptive and rude that I had to completely stop the hearing. I note also that while the parties may have disagreed as to whether the facts being considered at the hearing constituted discrimination, these facts were in and of themselves largely agreed on and uncontentious.
26All of that said, I gave the applicant an opportunity to confirm in writing that he would abide by his obligations under the Rules. However, the applicant did not provide the Tribunal with this confirmation. Instead the applicant stated that “he has no problem conducting himself properly” if all others reciprocate. I note that the applicant has repeatedly demonstrated that he does have a problem conducting himself properly. The issue is that any time that he perceives that he is being treated unfairly he believes that it is appropriate for him to scream and yell. I further note that in his submissions to the Tribunal he does not take responsibility for his conduct, indeed he does not seem to acknowledge that it was inappropriate. His submissions attempt to cast blame on others for his responses during the hearing. I therefore have no confidence that the applicant will conduct himself in a respectful manner in the future.
27In these circumstances, after giving careful consideration to the issue I am of the view that the applicant’s conduct is so abusive and disrespectful that it is impossible for me to conduct a fair hearing in these Applications. As such the Applications are dismissed as an abuse of process.
Order
28The Applications are dismissed.
Dated at Toronto, this 16th day of September, 2015.
“Signed by”
Geneviève Debané
Vice-chair