HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tori Barber

Applicant

-and-

Markham Stouffville Hospital

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: September 21, 2015

Citation: 2015 HRTO 1257

Indexed as: Barber v. Markham Stouffville Hospital

APPEARANCES

Tori Barber, Applicant

Self-represented

Markham Stouffville Hospital, Respondent

Lee Lenkinski, Counsel

BACKGROUND

1This Application, filed on October 30, 2014, alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction dated April 2, 2015, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed because it appeared the applicant may be unable to prove a connection between her complaint about the health care that she received and a Code ground. The parties were advised that the focus of the inquiry at the summary hearing would be on the evidence that the applicant has or may be able to obtain to prove that the inadequate care that she received was due to the respondent perceiving her to have a disability. The perceived disability alleged is a drug addiction.

3The summary hearing was conducted by teleconference on July 17, 2015.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The 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 has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code was a factor in the treatment the applicant experienced.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment 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.

7However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why she was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the evidence the applicant is able to point to, either in her possession or evidence that may be reasonably available to her, which tend to support the applicant’s belief that she has experienced discrimination or reprisal under the Code. Although the applicant may point to evidence that support her allegations, there are no findings made at the summary hearing stage in relation to that evidence.

8The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the adverse treatment allegedly experienced by the applicant with the grounds of discrimination alleged in the Application. Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated or reprised against. In such a situation, applications may be found to have no reasonable prospect of success. For an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

9Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this case as set out in this Application.

The Facts

10The applicant attended at the emergency department of the Markham Stouffville Hospital (the “Hospital”) at 7:30 p.m. on October 29, 2013 complaining of acute pain. The applicant alleges that the nurses at the Hospital left her in a state of horrific pain for hours and denied care until noon on October 30, 2013. The applicant alleges the nurses falsified her medical records, which the doctors reviewed and interpreted there was nothing wrong with the applicant.

11More specifically, the applicant alleges that after arriving at the Hospital, she was given morphine for the pain that she was experiencing, pursuant to a doctor’s orders to administer pain medication every hour. Not long after receiving the pain medication, she approached a nurse at the nursing station. The nurse was dismissive and said to the applicant “I know… you’re here for more drugs”. When the applicant told the nurse that she was there because her pain had changed and that something was wrong, the nurse ignored her concerns. The nurse refused to give the applicant her name. At 11:20 p.m., the nurse administered more pain medication in the waiting room, which caused the applicant to lose consciousness.

12The applicant spoke to a second nurse at the nursing station. She alleges that the second nurse threatened to discharge the applicant if she did not go on a stretcher. The applicant alleges further that the second nurse caused unnecessary stress by involving police and security. The second nurse allegedly refused to provide the applicant with a wheelchair to use the bathroom and instead, called security. After the applicant returned from having an x-ray, she reconnected herself to an IV. The applicant alleges that when the second nurse saw this, she sent a police officer to threaten the applicant with being charged for stealing narcotics and threatening the nurses. The applicant alleges that she was refused pain medication by the second nurse despite such medication being ordered by a doctor. The applicant alleges that as a result, she collapsed on the floor in pain. The applicant states the second nurse said she was disgusting and walked away. The applicant states further that she finally received pain medication at 4:20 in the morning.

13During the morning of October 30, 2013, the applicant spoke to a third nurse. When the third nurse was asked by the applicant why the applicant had gone so long without pain medication, the third nurse replied it was because the applicant showed no pain symptoms and her blood work was pristine. The applicant alleges that this third nurse handled her in a rough manner. The applicant alleges that she was transferred to a fourth nurse who also refused to provide pain mediation until ordered to do so by a doctor around noon that day.

14On October 30, 2013, the applicant was diagnosed with a ruptured appendix.

15In summary, the applicant alleges that she attended at the Hospital with acute pain that was subsequently diagnosed as a ruptured appendix. She alleges that she was denied proper health care from the Hospital. She believes the inadequate care that she received was because of the view of nursing staff that she was someone off the street who wanted heavy narcotics. The applicant alleges that she was treated as an annoyance, was verbally abused, and was left to fend for herself because she was perceived to be a drug addict. She relies on the statement from the first nurse that she was at the nursing station for “more drugs” to support this belief.

ANALYSIS

16The applicant is concerned about the care that she received from the Hospital. She was in considerable pain while in the emergency department, and she believes her pain was not properly managed. From the facts set out in the Application, the applicant was at the Hospital for a significant period of time before her ruptured appendix was diagnosed and treated.

17The applicant seeks an explanation for what she perceives to be callous and inadequate care from the nursing staff at the Hospital. The explanation that she relies upon is that she was perceived to be a drug seeker and that this is the reason why the Hospital failed to care for her appropriately.

18The issue before the Tribunal is whether there is any evidence that the applicant has or will have to link a perceived disability - drug addiction - with the care the applicant received from the Hospital. The applicant relies on the comment of the first nurse - that the applicant was there for more drugs - to support this link.

19In my view, this comment is insufficient to establish such a link. There is no dispute between the parties that there was a significant issue between the applicant and nursing staff regarding the applicant’s need for pain medication, and the applicant’s belief that she required more pain medication than she was receiving. This comment reflected that dispute. It is not sufficient, on its own, to establish that the applicant was perceived to be a drug addict.

20It is understandable that the applicant is trying to find an explanation for what she perceives was a failure by the Hospital to provide proper care in the face of a serious medical emergency. Discrimination is not a likely explanation given the absence of sufficient evidence to establish a link between a perceived disability and the care the applicant received.

21In the absence of sufficient evidence to link the care the applicant received and a perceived disability, this claim is simply based on the applicant’s suspicion and speculation that the nurses at the Hospital perceived her to be a drug addict. For an application to continue in the Tribunal’s process, following a summary hearing, there must be a basis beyond mere speculation that the applicant will be able to show discrimination on the basis of disability or perceived disability. There is no such basis here.

22At its core, this Application is a complaint about the quality of health care that the applicant received. The applicant is questioning the clinical judgments and professional competencies of the nurses at the Hospital. However, questions about the standard of care provided by nurses, absent some other indicator of discrimination, are not acts that constitute a violation of the Code and are not within the jurisdiction of the Tribunal. Such questions may properly form the basis of an action in negligence in court or a complaint to the College of Nurses. See Wilson v. Dixie Road Medical Association, 2011 HRTO 1607 and Egan v. Kennedy, 2006 BCHRT 15.

23There is insufficient evidence to support the applicant’s speculation that her treatment at the Hospital was due to the perception that she was a drug addict. In the absence of sufficient evidence linking the treatment decisions that were made and the applicant’s perceived disability, the Application must be dismissed as having no reasonable prospect of success.

ORDER

24The Application is dismissed.