Andrew Sprague v. University Health Network, 2015 HRTO 1706

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Sprague Applicant

-and-

University Health Network Respondent

INTERIM DECISION

Adjudicator: David Muir Date: December 17, 2015 Citation: 2015 HRTO 1706 Indexed as: Sprague v. University Health Network

WRITTEN SUBMISSIONS

Andrew Sprague, Applicant Self-represented

University Health Network, Respondent Brian O’Byrne, Counsel

1This is an Application filed on December 14, 2015, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In his Application, the applicant alleges that the respondent has placed discriminatory restrictions on his ability to visit his mother-in-law, a patient in the respondent’s facility. It appears these restrictions relate to the applicant’s use of a service animal and his restriction to only certain areas of the hospital – which have excluded him from his mother-in-law’s semi-private room on the PMCC Unit – while accompanied by his service animal. The applicant filed a Request for Interim Remedy seeking an Order described as follows:

a. An Order that would require the respondent to permit the applicant full and unfettered access to his mother-in-law when he is accompanied by his service animal and while she is a patient of the respondent including but not limited to access to his mother in law when she is in her hospital bed in her semi private hospital room on the PMCC Unit; and,

b. The Order would not include a requirement for the applicant to have access to his mother-in-law if she is located in the following environments:

i. pre-operative, post-anesthetic, intensive/critical care, step-down units;

ii. operating rooms;

iii. clean or sterile supply storages areas, tub or shower rooms, isolation rooms;

iv. medical preparation or storage areas; and,

v. food preparation and food storage areas.

3The Request for Interim Remedy was served on the respondent.

4On December 17, 2015, the respondent advised by email that the respondent “does not oppose his (the applicant’s) request for interim relief.”

5In light of the respondent’s communication above, it is not clear that an Order for Interim Relief is required, because it appears the respondent does not oppose access as sought in the request for Interim Relief. I note that the Applicant had filed a prior Application raising essentially the same issues and which was withdrawn after the applicant advised that he and the respondent had resolved the issue. It may be, that the respondent had modified its position and granted the same access to the applicant as other family members receive, but a staff member was unaware of this and restricted the applicant’s access on December 12, 2015.

6An Order for Interim Relief is by its nature an extraordinary remedy as it imposes a temporary legal obligation on a responding party in the absence of a finding that the Code has been breached. The test for granting interim relief includes the requirement for a finding that the application appears to have merit as well as a weighing of the balance of harm and convenience, and a general requirement that an order be just and appropriate in the circumstances. The Tribunal has very rarely granted interim remedies, and the test for doing so must be met even where in unique circumstances such as these the responding party is not opposed. I note that in addition to only the above brief response to the Request for Interim Relief, a Response has not yet been filed by the respondent so the only material on which to make my determination is the applicant’s material.

7The relevant considerations available to me are the applicant’s allegations that he has been denied access to his mother-in-law in her hospital room while accompanied by his service animal. He uses his service animal for disability-related reasons. I assume for the purposes of this Interim Decision that this fact can be proved and at this stage the respondent does not dispute it. There is also no information currently before me supporting the suggestion that the restrictions alleged have been put in place for health or safety reasons. Accordingly, at least on the face of the material currently available, there is a basis to conclude that the applicant could be accommodated by allowing him to access his mother-in-law with his service animal in the same way he would otherwise be entitled to, but for his service animal. There is also urgency to the request for interim relief because of his family member’s health status. It appears that delaying relief in this case might make the ultimate relief sought moot. In the absence of responding submissions no harm has been identified to granting access. Considering all of these factors, the test for granting interim relief has been met.

8I do have one concern though. The scope of the order sought, while it has been limited, still appears overly broad to me. A general principle in human rights remedial jurisprudence is that where an applicant is successful on the merits of his claim, he or she is typically entitled to be put in the position he or she would have been but for the discriminatory treatment. In this case, there is no basis at this time to conclude that the applicant would be entitled to greater access than would have been the case but for restrictions relating to his service animal. In my view, an order for unfettered access, even with the restrictions identified, may be overly broad.

9For all of the reasons above, the request for Interim Relief is granted, in part, as follows:

1. The respondent is ordered to permit the applicant to have access to his mother-in-law when he is accompanied by his service animal and while she is a patient of the respondent, including but not limited to access to his mother-in-law when she is in her hospital bed in her hospital room; this access will be on the same basis that he otherwise would have been entitled to as a family member, but for his service animal; and,

2. This Order excludes a requirement for the applicant to have access to his mother-in-law if she is located in the following environments:

• pre-operative, post-anesthetic, intensive/critical care, step-down units;
• operating rooms;
• clean or sterile supply storages areas, tub or shower rooms, isolation rooms;
• medical preparation or storage areas; and,
• food preparation and food storage areas.

10I am not seized.