Martin v. St. Thomas Elgin General Hospital, 2015 HRTO 1684

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Crystal Martin

Applicant

-and-

St. Thomas Elgin General Hospital

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: December 14, 2015

Citation: 2015 HRTO 1684

Indexed as: Martin v. St. Thomas Elgin General Hospital

APPEARANCES

Crystal Martin, Applicant

Self-represented

St. Thomas Elgin General Hospital, Respondent

Laura Cassiani, Counsel

Introduction

1This Application 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 July 30, 2015 (the “CAD”), 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.

3The summary hearing was conducted by teleconference on December 9, 2015. At the hearing, the applicant withdrew allegations one, two and three as set out in the narrative of her Application and the hearing proceeded on the remaining allegations as described below.

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 of 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 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 the evidence and whether it is sufficient to establish discrimination.

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 the Application.

The Facts

10The applicant did not identify any disability in her Application. At the hearing, she indicated that her disability is a rotated spine which can cause considerable pain. The applicant does not have a family doctor and sought treatment and pain control medication at the respondent’s emergency room.

11On February 11, 2015, the applicant went to the emergency room and, according to the applicant, the attending physician wrote in her chart that she was a “drug seeker” because she had been in the emergency room 38 times in a year and that the physician “advised all doctors to take it into account”. In her narrative the applicant explains:

It’s not my fault they don’t do there (sic) jobs therefore causing me to return several times. He discriminated against me because I had been there 38 times in a year. I am entitled under law to go to the hospital when needed without fear of discrimination or of being refused treatment.

According to her health record, on this visit, the applicant reported having injuries from an assault the previous day.

12On February 23, 2015, the applicant went to the emergency room and the attending physician, according to the applicant, “centered me out in front of everyone saying I was a drug seeker” and by asking “if I did iv drugs or bought drugs off the street”. According to her health record, on this visit, the applicant complained of abdominal pain and was administered prescribed narcotic medications.

analysis

13In order to determine whether there is no reasonable prospect of success, the Tribunal must decide whether there is any evidence that the applicant has or that is reasonably available to the applicant that will establish a link between the mistreatment she alleges and the applicant’s disability.

14I accept that the applicant was very upset when the attending physician wrote in her patient chart that she was a “drug seeker” and when in the emergency room her attending physician made inquiries “in front of everyone” about her drug usage.

15That said, bad feelings and embarrassment, no matter how strongly felt, do not establish a case of discrimination. The applicant did not establish in any way that the entries themselves or the questioning by the attending physician amounted to differential treatment based on her rotated spine.

16It is clear that the applicant feels that she has been mistreated by the respondent. However, in the absence of a link to a protected ground under the Code, mistreatment or unfair treatment is not discrimination under the Code. In that regard the applicant has failed to point to any evidence in her possession or evidence that might be available to her to support her belief that her rotated spine was a factor in the way she was treated at the hospital.

17In the absence of any real or cogent facts linking the respondent’s conduct with the applicant’s disability, her claim is essentially a bald allegation of discrimination based on the applicant’s suspicion and speculation that she was mistreated because of her disability.

18The applicant has not demonstrated a link between the actions of the respondent and her disability. In sum, she has not demonstrated that there is a reasonable prospect of success of the Application.

19As an aside, I would point out that the applicant has not pleaded drug addiction (actual or perceived) as a Code protected disability. She claims not to have a substance abuse. Accordingly, I have not addressed the issue in this Decision.

20The Application is dismissed.