Michael Thompson v. PUC Distribution Inc., 2015 HRTO 407

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Thompson

Applicant

-and-

PUC Distribution Inc.

Respondent

DECISION

Adjudicator: Eli Fellman

Date: March 30, 2015

Citation: 2015 HRTO 407

Indexed as: Thompson v. PUC Distribution Inc.

APPEARANCES

Michael Thompson, Applicant

Self-represented

PUC Distribution Inc., Respondent

Sarah Crossley, Counsel

Introduction

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 respect to goods and services because of disability.

FACTS

2The applicant asserts that he suffers from electromagnetic hypersensitivity ("EHS"), and the respondent has failed to accommodate his disability by reducing the electromagnetic fields ("EMF") coming from the underground electrical cables which provide electricity for his home. EMFs are invisible forces that surround electrical equipment, power cords and wires that carry electricity. He alleges that the respondent has discriminated against him by treating him like any other customer and not doing more to reduce the EMFs entering his home. The applicant believes that there must be a way for the respondent to lower the EMF levels, because other homes in Sault Ste. Marie have lower levels.

3In response to the applicant's complaints, the respondent has tested the EMFs at his house and found them to be typical of those that would be measured throughout any municipal electrical distribution system. However, in an attempt to address the applicant's concerns, the respondent briefly disconnected the applicant's underground electrical service in order to perform some tests and conduct some switching work. Secondary tests were performed and EMF measurements were taken near the applicant's home which did not indicate any material change in EMF levels. The respondent also verified that all secondary connections to the applicant's home were functioning properly and no defects were observed in the electrical system.

4The applicant acknowledges that the respondent has attempted to respond to his concerns and has taken measures to reduce the EMF, but he contends that he cannot tolerate the present levels. He states that he experiences a lot of neurological symptoms in his house such as headaches, stomach and chest pain and he cannot sleep well in most rooms of his house.

2012 Application

5In 2012, the applicant filed an Application with the Tribunal (File No. 2012-10640-I) against the respondent respecting the installation of a smart electricity meter at his residence. It was the applicant's position that the smart meter, which uses wireless technology, had a substantial impact upon him due to his EHS. The applicant submitted a letter dated November 4, 2011 written by Dr. Kathleen Kerr of Women`s College Hospital in support of this earlier Application. The letter states that the applicant suffers from Environmental Sensitivities, including sensitivities to electromagnetic field frequencies, and summarizes the findings of several scientific and health studies to support the contention that electromagnetic fields can have health effects on the general public.

6The respondent ultimately agreed to replace the wireless smart meter with an analogue meter in February 2012 and the prior Application was settled with minutes of settlement signed on October 25, 2012.

SUMMARY HEARING

7By Case Assessment Direction dated February 19, 2013, the Tribunal directed that a summary hearing be held to consider whether the current Application should be dismissed as having no reasonable prospect of success.

8This matter was heard by teleconference on February 26, 2015.

9Details 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.

10In its Request for a Summary Hearing, the respondent asserted that the applicant will be unable to establish at a merits hearing that: (i) he suffers from a disability that warrants protection under the Code; and/or (ii) his alleged symptoms of EHS are caused by the respondent's underground cables or the EMFs purportedly coming from the cables.

DISABILITY

11The first issue that must be considered is whether there is a reasonable prospect of success that the applicant is a person with a disability.

12Section 10(1) of the Code defines the term "disability" as follows:

"disability" means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;

13The issue of whether EHF is a genuine medical condition is a matter of controversy in the medical and scientific communities.

14The applicant resubmitted the letter dated November 4, 2011 written by Dr. Kathleen Kerr of Women's College Hospital. As discussed above, the letter states that the applicant suffers from Environmental Sensitivities, including sensitivities to electromagnetic field frequencies, but does not specifically address any health concerns related to EMF emanating from underground electrical cables. The applicant indicated that he did not intend to call Dr. Kerr as a witness because nothing has changed since the letter was written.

15Both parties submitted a number of medical and scientific studies and publications addressing EHS and EMF. These materials, while potentially useful should the matter proceed to a hearing, are not considered evidence unless the respective authors are called to testify at a Tribunal hearing and are accepted as experts qualified to provide opinion evidence respecting EHS and EMF.

16The applicant indicated that he did not intend to call any medical or scientific experts to testify should the Application proceed to a hearing. The applicant believes that his own testimony should be sufficient and that it would be difficult to make the necessary arrangements for expert evidence because he resides in Sault Ste. Marie and the experts are likely located far away.

17The applicant's submitted materials include: a 2007 study entitled "The Medical Perspective on Environmental Sensitivities" produced for the Canadian Human Rights Commission ("CHRC"); a guide to living with environmental sensitivities produced by Women's College Research Institute; what appears to be an unpublished article entitled "Introduction to Electromagnetic Hypersensitivity" by Larry Newman; a 2006 article entitled "Electrohypersensitivity: State-of-the-Art of a Functional Impairment" authored by a member of the Department of Neuroscience at the Karolinska Institute in Stockholm Sweden; what appears to be an unpublished 2007 article entitled "The Biological Effects of Weak Electromagnetic Fields" by Andrew Goldsworthy; and an undated document produced by the American Academy of Environmental Medicine entitled "Electromagentic and Radiofrequency Fields Effect on Human Health".

18The applicant's submitted articles generally support his position that electromagnetic field hypersensitivity is a documented and genuine condition with negative health effects upon certain people. I do note however that the 2007 study produced for the CHRC, which states that opinions in the report do not necessarily reflect the views of the CHRC, acknowledges at page 14 that "[t]here is a lack of consensus in research regarding the health effects of electromagnetic phenomena."

19The respondent also submitted a number of medical and scientific documents and studies to support its position that EHS should not be recognized as a disability. These include: several Health Canada publications addressing electric and magnetic fields; a 2010 publication of the Canadian Electricity Association entitled "Electric and Magnetic Fields"; a 2001 article entitled "Hypersensitivity to electricity; symptoms, risk factors and therapeutic interventions" by a member of the Department of Public Health Science at the Karolinska Institute in Stockholm Sweden; a 2005 article entitled "Electromagentic Hypersensitivity: A Systemic Review" published in the journal Psychomatic Medicine; an 2011 article entitled "Do People with Idiopathic Environmental Intolerance attributed to Electromagnetic Fields Display Physiological Effects When Exposed to Electromagentic Fields? A Systemic Review of Provocation Studies" published in the journal Bioelectromagnetics; several World Health Organization ("WHO") publications on Electromagentic fields and public health; and several publication of the International Commission on Non-Iodizing Radiation Protection respecting guidelines for limiting exposure to time-varying electric, magnetic and electromagnetic fields.

20The test in a summary hearing is whether an application, or part of an application, has a reasonable prospect of success at a hearing based upon the evidence the applicant proposes to provide. The applicant in this matter has a letter from a medical doctor employed at a well-respected hospital stating that the applicant suffers from Environmental Sensitivities, including sensitivities to electromagnetic field frequencies.

21I acknowledge the respondent's position that the value of the letter containing the diagnosis is undermined by the fact that Dr. Kerr is not being called as a witness, and that there is substantial body of medical and scientific literature suggesting that EHS is merely a collection of symptoms and not an actual illness or identifiable condition.

22However, given the broad definition of the term "disability" contained in section 10(1) of the Code and the test applied by the Tribunal at the summary hearing stage of a proceeding, I cannot find that there is no reasonable prospect that the applicant would be unable to prove at a hearing that he has been diagnosed with EHS, and that EHS should be recognized as a disability for the purposes of a proceeding under the Code.

23It is important to understand that this decision does not mean that I necessarily accept the applicant's position that EHS constitutes a disability or that he would be successful with respect to this issue should the Application proceed to a hearing on its merits. It only means that it cannot be said that there is no reasonable prospect that this position can be proven by the applicant at a hearing.

24The respondent submitted a recent decision of the British Columbia Human Rights Tribunal ("BCHRT")(Citizens for Safe Technology Society obo others v. B.C. Hydro and Power Authority (No. 3), 2014 BCHRT 211) concerning a very similar issue. In that matter the applicants alleged that the respondent discriminated against them on the basis of a physical disability by requiring them to receive a wireless smart meter in their homes. The applicants were persons diagnosed as having EHS. The BCHRT undertook a thorough review of the submitted scientific literature on EHS and EMF, and similarly found at paragraph 135 that having considered the whole of the material, it could not conclude that there was no reasonable prospect that the complainants can establish that EHS is a disability under the British Columbia Human Rights Code.

NO LINK

25If the applicant is able to establish at a hearing that he is a person with a disability, the second issue that the Tribunal must consider is whether there is a reasonable prospect that the evidence the applicant has or that is reasonably available to him will establish that there is a link between his disability and the respondent's conduct. In this case, the conduct is the transmission of electricity through the respondent's underground cables that lead to the applicant's home. To put it another way, does the applicant have any evidence that may establish, on a balance of probabilities, that the symptoms that he experiences in his house are caused by the EMF coming from the respondent's underground electrical cables.

26The applicant submitted that the respondent's underground cables must be responsible for his symptoms because this is the sole source of electricity. Therefore, if there were no underground electrical cables, he would not be experiencing any EHS symptoms. The applicant stated that he regularly takes EMF readings in house, and his symptoms vary in severity in accordance with the readings. When the readings are higher, his symptoms are worse. The applicant noted that he has removed most electrical appliances and devices from his house because these items also produce EMFs.

27I have no reason to doubt the sincerity of the applicant's belief that there is a correlation between the EMF levels in his house and the symptoms that he has described. However, there is a complete absence of credible evidence to support this belief. The November 4, 2011 doctor's note speaks only of the presence of the wireless electrical meter and does not provide an opinion on the issue of whether the level of EMFs currently emanating from the underground electrical cables can result in the applicant experiencing symptoms associated with EHS. Further, the applicant does not have any scientific or engineering reports or studies suggesting that the actual EMF levels emanating from the underground electrical cables may be causing the applicant to experience symptoms associated with EHS. The applicant does not intend to call any expert witnesses to provide opinion evidence that his symptoms are in anyway related to the EMFs coming from the underground electrical cables.

28In the absence of such evidence, I find that the applicant has no reasonable prospect of establishing the symptoms he describes are caused by the EMFs emanating from the respondent's underground electrical cables.

29Further, beyond the absence of any evidence respecting the impact of the actual EMF levels in his house, review of the submitted medical and scientific literature suggests that the view that EMF exposure can result in health problems is not widely accepted.

30In 2010, Health Canada published a fact sheet on EMFs called "It's Your Health". It reviews some of the studies and evidence relating to the concerns about exposure to EMFs and concludes that:

Health Canada does not consider guidelines for the Canadian public necessary because the scientific evidence is not strong enough to conclude that exposures cause health problems for the public.

31The WHO has made a similar determination. In an October 2014 document entitled "Electromagentic Fields and Public Health: Mobile Phones Fact Sheet", it stated that:

(. . .) research has not been able to provide support for a causal relationship between exposure to electromagnetic fields and self-reported symptoms, or electromagnetic hypersensitivity.

32As noted above, the BCHRT recently issued a decision respecting wireless smart electricity meters. In Citizens for Safe Technology Society obo others v. B.C. Hydro and Power Authority (No. 3), 2014 BCHRT 211 the BCHRT considered whether there is a nexus between EHS and smart meters. It found at paragraph 139:

On my reading of the evidence, the overwhelming message in the material filed relating to the impact of EMS exposure on people experiencing EHS symptoms is that there is currently no scientific basis to conclude there is a connection between EMS exposure and causality, exacerbation or simply reawakening of dormant EHS symptoms.

33While BCHRT decisions are in no way binding upon me, I find that it has some persuasive value as it addresses a similar set of facts and its conclusions are based upon a very thorough review of the submitted current medical and scientific literature.

34Therefore, I do not find that there is reasonable prospect that the applicant will be able to provide evidence that will establish, on a balance probabilities, that there is a link between his claimed disability, EHS, the respondent's conduct and the transmission of electricity through the respondent's underground cables that lead to the applicant's home.

ORDER

35The Application is dismissed.