Rita Keays v. St. Joseph’s Healthcare Hamilton, 2015 HRTO 250

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rita Keays

Applicant

-and-

St. Joseph’s Healthcare Hamilton, a division of St. Joseph’s Health Systems

Respondent

DECISION

Adjudicator: Mark Hart

Date: March 2, 2015

Citation: 2015 HRTO 250

Indexed as: Keays v. St. Joseph’s Healthcare Hamilton

APPEARANCES

Rita Keays, Applicant

Self-represented

St. Joseph’s Healthcare Hamilton, a division of St. Joseph’s Health Systems, Respondent

James Thomson, Counsel

1This is an Application filed May 14, 2014 alleging 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 (“CAD”) dated October 14, 2014, the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether the Application should be dismissed on the basis that it may have no reasonable prospect of success or because another proceeding may have appropriately dealt with the substance of the Application.

3The summary hearing was held by teleconference on December 18, 2014, and I heard oral submissions from the applicant and counsel for the respondent.

4Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

5Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

6The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground.

7The central allegation of the applicant is that a physician associated with the respondent would not order an MRI for her. The refusal to provide such a medical service is a medical judgment over which the Tribunal has no jurisdiction unless the reason for the denial of such a service was itself based in whole or in part on a prohibited ground of discrimination.

8The applicant contends that an MRI would reveal what she believes to be the cause of excruciating pain for her. She asserts that a link to a Code ground is established on the basis that the physician who refused to order the MRI perceives her to have a mental health disability, which she claims she does not have.

9The difficulty with this contention is that the issue of whether or not the applicant has a mental health disability already was addressed at length in a decision of the Consent and Capacity Board (“CCB”) dated April 11, 2014. After reviewing the evidence before it, the CCB determined that the applicant suffered from the manifestations of a disease or disability of the mind and, in other words, that she suffered from a mental disorder. The CCB noted that the testimony and presentation of the applicant in the hearing before that tribunal demonstrated clinical manifestations of a fixed delusional belief system. This finding was supported by medical reports and the testimony from a psychiatrist who is responsible for the applicant’s care and covers the same time period during which an MRI was denied to the applicant.

10The applicant disputes the finding of the CCB and notes that she has sought to have this decision overturned in the courts. To date, the applicant has been unsuccessful in her efforts, although she states that the matter is currently before the Ontario Court of Appeal. In my view, the CCB’s finding that the applicant has a mental health disability is well-supported by the evidence as set out in its decision, and I find that the applicant does not have any reasonable prospect of success in challenging this finding before the Human Rights Tribunal of Ontario. Apart from her own personal views, the applicant in her submissions at the summary hearing did not point to any medical or other evidence that would contradict the finding that she has a mental health disability.

11The CCB decision did not expressly address the denial of an MRI to the applicant. As such, I cannot find that another proceeding has already appropriately dealt with the substance of the Application, within the meaning of s. 45.1 of the Code.

12However, the applicant’s entire case is premised on the contention that the treating psychiatrist perceived her to have a mental health disability which she says that she does not have, and therefore that this perceived disability was a factor in the decision to deny her an MRI. Having found that the applicant has no reasonable prospect of success in challenging the CCB’s finding that she does in fact have an actual mental health disability, the applicant’s entire case before the Human Rights Tribunal cannot succeed, given that it is premised on an assertion that is not supportable. If the applicant has no reasonable prospect of success in establishing that she does not have a mental health disability, the treating psychiatrist’s decision not to order an MRI becomes simply a matter of the exercise of his medical judgment, over which this Tribunal has no jurisdiction.

13At the teleconference hearing, I asked the applicant whether there were any other alleged violations of the Code that she was raising in this proceeding. The only other allegation that she raised at the hearing was that she was being held against her will at the respondent facility, which she claimed was a violation of her rights. The issue of the applicant’s involuntary status under the Mental Health Act was expressly determined by the CCB in its decision, which found that the applicant met the relevant criteria for involuntary status. It is not the role of the Human Rights Tribunal to review the decisions of the CCB under the Mental Health Act. In the context of an allegation of a violation of the Code, the applicant would need to be able to demonstrate that she has a reasonable prospect of success in establishing that her involuntary status was discrimination because of a ground protected under the Code. Once again, the applicant’s contention that her rights under the Code have been violated by her involuntary status is premised upon her assertion that she is perceived to have a mental health disability which she says she does not have. As addressed above, I have found that she has no reasonable prospect of establishing this.

ORDER

14For the foregoing reasons, the Application is dismissed in its entirety as having no reasonable prospect of success.