T.B. v. Lall, 2015 HRTO 1391

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.B.

Applicant

-and-

Rosemarie Lall, Joel Shapiro, Umesh Jain, Harriet McConnell and Michael Pare

Respondents

DECISION

Adjudicator: Leslie Reaume Date: October 20, 2015 Citation: 2015 HRTO 1391 Indexed as: T.B. v. Lall

APPEARANCES

T.B., Applicant Self-represented

Rosemarie Lall, Joel Shapiro, Umesh Jain, Harriet McConnell and Michael Pare, Respondents Kara Smith, Counsel

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 to respect to medical services because of race, colour, ethnic origin, disability, creed, sex and marital status.

2The individual respondents are all medical doctors who have treated the applicant (with the exception of Dr. Pare). Dr. Lall has been the applicant's family doctor since March, 2002.

3On June 10, 2015, the Tribunal issued a Case Assessment Direction ("CAD") advising the parties that a summary hearing would be held by teleconference to determine whether the Application should be dismissed in whole or in part for "no reasonable prospect of success". The CAD provided the parties with a comprehensive description of the summary hearing process and the issues they would be required to address. In this case, the Tribunal also directed the parties to address the issue of delay. Oral submissions were heard on September 28, 2015.

4The role of the applicant in the summary hearing is to describe to the Tribunal the evidence they intend to rely on to support their belief that they experienced discrimination. The Tribunal's role is to consider whether the allegations fall under the Tribunal's authority and whether there is evidence which will reasonably be available to support the allegations. Where an applicant believes that they have been the victim of discrimination, but is unable to point to evidence which would support that belief, an application will be found to have "no reasonable prospect of success".

5While the primary focus in the summary hearing is on the applicant's evidence, the respondent's explanation may be considered where the parties agree on 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. The Tribunal is mindful of the fact that in some cases an 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.

6The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Discrimination in the legal sense requires proof that unfair treatment is based, at least in part, on a person's race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment.

7At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. At this stage, the Tribunal assumes that the applicant is telling the truth unless there is clear evidence to the contrary which the applicant does not dispute. However, that does not mean that the Tribunal accepts the applicant's assumptions and beliefs about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence available to support the applicant's assumptions and beliefs that the unfair treatment they experienced arises from a prohibited ground under the Code. Making this connection is an important part of proving discrimination.

8In order to proceed to a full hearing some evidence must exist, which goes beyond the applicant's feeling or belief that the ground played a role in what they experienced. Many circumstances play a role in assisting the Tribunal in determining whether a person has experienced discrimination in the legal sense. However, if the applicant is unable to point to evidence, beyond their own assumptions or belief, an application may be found to have no reasonable prospect of success.

9If the Tribunal determines that an application has no reasonable prospect of success it will be dismissed. If the Tribunal is unable to determine that an application has no reasonable prospect of success, it will move to the next stage in the hearing process. In some cases, the Tribunal finds that only part of an application will move ahead, while part is dismissed.

ANALYSIS

10The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the application should proceed. Specifically, the applicant was asked to assist the Tribunal in understanding how he came to believe that the alleged incidents occurred given that he has no personal knowledge of the incidents to rely on. The Application lacks particulars and as a result, the applicant was asked to provide more detail, particularly about comments he alleges were made about him.

11The respondents made oral submissions supporting their position that the Application should be dismissed in its entirety. Although the respondents were not required to file a response, each doctor swore an affidavit attaching a full copy of their clinical notes with respect to the applicant. This was very helpful in demonstrating to the applicant that the communications between his various doctors were devoid of any references to the diagnosis and disrespectful comments he alleges were made about him.

12The applicant indicated that he understood the instructions he received and the issues he was asked to address in the summary hearing. The respondent went first to provide submissions in support of the position that the Application should be dismissed for delay and no reasonable prospect of success. The applicant then provided his submissions and answered questions from the Tribunal about his allegations.

13To summarize his core allegations, the applicant believes that he has been demeaned by being referred to as a "low I.Q. psychopath", a pedophile and a person who engages in domestic violence by doctors who have passed this information to one another and to their staff. The applicant believes that he has experienced harassment and discrimination which is linked to the fact that he is a Caucasian, single, heterosexual male with a disability. I have set out the allegations again each doctor separately below.

Dr. McConnell

14Dr. McConnell is a family doctor with a practice in cognitive and supportive psychotherapy. The applicant was referred by his family doctor, Dr. Lall, to Dr. McConnell in March, 2014. She conducted a history and assessment of the applicant and continued to see the applicant for therapy until October, 2014.

15Dr. McConnell referred the applicant to Dr. Shapiro for further evaluation. Dr. McConnell is accused of calling the applicant a pedophile and accusing him of domestic violence and it is alleged that she shared these opinions with Dr. Shapiro.

16The applicant acknowledges that he never heard Dr. McConnell make these comments nor are there any comments in the medical notes which would support the applicant's allegations.

Dr. Shapiro and Dr. Pare

17Dr. Shapiro is a psychiatrist at The Medical Centre for Person-Centred Psychotherapy Clinic (the "Clinic"). Dr. Shapiro met with the applicant on May 13, 2014, and saw him again a number of times until March, 2015. He provided a consultation note to Dr. McConnell and developed a treatment plan. The applicant was seen a few times by Dr. Shapiro between May 2014 and March 2015.

18The applicant alleges that Dr. Shapiro defamed him by sharing with Dr. Pare, a general practice physician in the same Clinic, Dr. McConnell's opinion that the applicant was a pedophile and engaged in domestic violence. The applicant also alleges that Dr. Shapiro permitted Dr. Pare to listen in on sessions with the applicant without the applicant's consent.

19The applicant acknowledges that he never heard Dr. McConnell make these comments to Dr. Shapiro, nor did he hear Dr. Shapiro convey these comments to Dr. Pare.

20The applicant states that Dr. Pare was not in the room with him during his sessions with Dr. Shapiro. However, the applicant believes that Dr. Pare was listening in from the next room. The applicant stated that he could tell by the look on Dr. Pare's face that Dr. Pare had been listening from another room.

21There is nothing in the medical documentation which would substantiate the applicant's allegations.

Dr. Jain

22Dr. Jain is a psychiatrist who saw the applicant as an outpatient at Centre for Addiction and Mental Health ("CAMH") in December 2009, March 2010 and April 2010 on a referral from Dr. Lall. In May 2010, Dr. Jain sent a letter advocating on behalf of the applicant to assist him in his efforts to get admitted to the University of Toronto. The applicant was discharged as a patient of CAMH on May 31, 2011.

23The applicant alleges that Dr. Jain demeaned him by diagnosing him as a "low I.Q. psychopath" and communicating this diagnosis to his family doctor.

24The applicant acknowledges that Dr. Jain did not make the alleged statements directly to the applicant. There is no evidence of a clinical note which contains this diagnosis.

25The applicant acknowledges that his allegations against Dr. Jain are out of time. He stated in his oral submissions that he did not know that he could file an application with the Tribunal against Dr. Jain.

Dr. Lall

26Dr. Lall has been the applicant's family doctor since March, 2002. The applicant has been treated since that time for various issues, none of which appear to be relevant to this Application. Dr. Lall made a number of referrals to assist the applicant in being assessed for psychiatric support.

27Dr. Lall is accused of spreading personal information and rumours about the applicant, harassing him and calling him a "low I.Q. psychopath". The applicant also notes that Dr. Lall does not employ any Caucasian or male staff members in her office other than her husband. The applicant acknowledges that he never heard Dr. Lall make these statements.

28Dr. Lall is also accused of telling her staff that the applicant is a psychopath. Again, the applicant did not hear this himself. He has concluded this from his perceptions about how he has allegedly been treated by Dr. Lall's staff. He states that the staff members give him "attitude" and laugh at him. He also stated that at times he has come to the office for an appointment and then been told that he is mistaken.

Other Allegations

29In approximately 16 emails sent to the Tribunal following the filing of the Application the applicant makes the following statements:

• Dr. Jain asked him if he had ever raped someone;
• Dr. Lall accused him of raping someone;
• Dr. Lall is the one who said he had a low IQ not Dr. Jain;
• Most of the things that have been said about the applicant have been "off the record" and "behind his back";
• The applicant told Dr. Lall that he was getting a dog and she asked if that was a good idea;
• Dr. McConnell told the applicant he was a loser;
• Comments about suing doctors and the outstanding civil action which some of the respondents are named in;
• A comment that it is Dr. Jain who has a low I.Q.;
• One email contains only the statement: "Thomas is guilty of thought crimes against big brother";
• A second email contains only the statement: "Thomas has realized Freedom is slavery. Thomas loves Big Brother, and he has always loved Brother".

30During his oral submissions, the applicant acknowledged that he has no personal knowledge of the allegations he has made against the respondents. He acknowledged that he has made assumptions based on how he perceives people behaving toward him. When he was asked how he came to believe that the respondents had described him as a pedophile, a "low I.Q. psychopath" or accused him of engaging in domestic violence, the applicant responded that this is usually what people think of him and he has been called these name before by other people. He assumes, therefore, that these things have been said about him by the respondents.

31During his oral submissions the applicant also stated that there is a letter missing from his medical file which he believes was written by Dr. Jain to Dr. Lall in 2010. The applicant does not know that this letter actually exists. He believes that a letter is being withheld from him because it contains evidence which would support his allegations. He has come to this belief as a result of a recent incident involving the transfer of his medical records from a doctor (who is not named in this proceeding) to a medical centre. The applicant was told by the doctor's office that 15 pages of notes were faxed to the medical centre. He was told by the medical centre that 12 pages of notes were received. He was also told that he should contact the doctor who sent the notes if he had any further questions. From this the applicant has concluded that that a letter exists, which is being withheld from him because it supports his allegations of discrimination.

32Having carefully considered the applicant's allegations, I find that there is no reasonable prospect that the applicant can succeed under the Code. This finding is based on the fact that the applicant himself has no personal knowledge of the things he has alleged against the respondents and there is no evidence available to support those allegations. In these circumstances, I find that there is no reasonable prospect that this Application will succeed.

33On the issue of delay, the applicant did not provide particulars as to when his allegations occurred nor did he describe having taken any steps to inform himself about his rights under the Code. However, given my finding that this Application has no reasonable prospect of success, I do not consider it necessary to deal with the issue of delay.

34Accordingly, the Application is dismissed.

Anonymization

35I have been careful to consider the sensitive nature of the information contained in the clinic notes filed by the respondents and have made public only that information which was necessary to resolving this matter. I also initiated a request to the parties for submission on anonymizing this Decision because of the sensitive and personal medical information it contains.

36The applicant indicated that he wishes to be identified in this Decision by his initials. The respondents also indicated their consent.

37Rule 3.11 of the Tribunal's Rules of Procedure provides that the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so. The Tribunal has also invoked Rule 3.11 as the basis upon which to anonymize parties in proceedings before it.

38The Tribunal's Practice Direction on Anonymization of Human Rights Tribunal of Ontario ("HRTO") Decisions emphasizes the need for the Tribunal to balance the important privacy interests of the parties with the importance of maintaining a fair and open human rights process. The Practice Direction states:

While all requests for anonymization are considered on a case-by-case basis, the HRTO's general approach is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting anonymization.

39There is no request for a full publication ban and therefore, the public's right to an open hearing would not be infringed. The Tribunal has acknowledged the limited effect that anonymization has on the openness of the Tribunal's process. As stated in C.M. v. York District School Board, 2009 HRTO 735 at para 25:

The use of initials will only affect the text provided by the Tribunal to the parties and the public, including the Canadian Legal Information Institute, on whose web site the Tribunal's decisions are published.

40This Decision contains details of the applicant's relationship with various medical professionals and his mental health treatment history. I find that the protection of the applicant's interests in maintaining privacy over that information outweighs the interests of a fully open process. I make this finding particularly in light of the fact that the use of initials rather than the applicant's name, does not detract from an open and transparent Tribunal process.

41Accordingly, the applicant will be referred to by the initials "T.B." in this Decision.

Orders

42The Tribunal makes the following Orders:

• The applicant will be referred to by the initials "T.B." in this Decision;
• The Application is dismissed.