Valenzisi v. 2 Vita – Dr. Jeff Matheson, 2015 HRTO 527

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Giulia Valenzisi

Applicant

-and-

2 Vita – Dr. Jeff Matheson and Jeff Matheson

Respondents

DECISION

Adjudicator: Brian Eyolfson

Date: April 23, 2015

Citation: 2015 HRTO 527

Indexed as: Valenzisi v. 2 Vita – Dr. Jeff Matheson

APPEARANCES

Giulia Valenzisi, Applicant

Allison Pyper, Counsel

2 Vita – Dr. Jeff Matheson and Jeff Matheson, Respondents

Ryan Breedon and Brent Kettles, Counsel

Introduction

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 29, 2014, and alleges discrimination with respect to services, goods and facilities on the basis of sex.

2In the Application, the applicant alleges that the individual respondent, Dr. Jeff Matheson, unnecessarily exposed her right breast during a physical examination of her neck and shoulders. She alleges that Dr. Matheson pulled her top and bra strap forward and to the right, while standing over her right shoulder, and having a clear view of her breast. She alleges that he could have simply pulled her top and bra strap over her shoulder without exposing her.

3The applicant also alleges that she was forced to go back to Dr. Matheson’s office a second time for treatment, because his office refused to give her a prescription to be filled at her pharmacy, and insisted on filling it at their pharmacy.

4In their Response to the Application, the respondents submit that the allegations concern a professional encounter between the applicant and a physician licenced to practice in Ontario. They submit that, as part of his assessment, Dr. Matheson was required to examine the applicant, and that he denies any impropriety whatsoever in his examination or treatment of her. The respondents also submit that the Tribunal does not have jurisdiction to determine the standard of practice of physicians in Ontario.

WITNESSES

5The applicant and the individual respondent, Dr. Matheson, gave evidence at the hearing. The respondents also called Dr. John Purdell-Lewis as an expert witness in the area of pain management.

SUMMARY OF EVIDENCE

Applicant’s evidence

6The applicant testified that she was in a car accident in 2011, and that she had severe headaches after the accident, and pain which escalated from that day. She described having headaches, back pain, and arthritis and pain in her neck. She testified that her primary complaints are headaches and neck pain, for which she has seen between 10 and 15 various doctors since the accident. She explained that these doctors assessed the areas she has pain by putting pressure and touching sore and tender areas, but, at no time, have her breasts been involved in an examination.

7The applicant testified that her friend has the same issues and symptoms that she has, and is a patient of Dr. Matheson’s, so the applicant’s family doctor referred the applicant to Dr. Matheson, and she went to see him for botox injections for the treatment of her pain.

8The applicant testified that she attended Dr. Matheson’s clinic for the first time in September 2013. She filled out a questionnaire, and waited in the waiting room before being called into an examination room for an assessment. She testified that she discussed the pain she was having with Dr. Matheson, and then he did a physical exam.

9The applicant testified that Dr. Matheson touched her neck, and felt around the back of her neck and head for any tender points. She testified that, while Dr. Matheson was standing behind her to her right, he pulled her bra and dress forward with his right hand. She testified that she is 5’3” tall, and that it was not a normal exam, she was never examined that way before, and she became uncomfortable.

10The applicant testified that Dr. Matheson finished the examination and discussed treatment, and she was to have follow-up appointments for botox injections.

11The applicant testified that, later, in the reception area, she wanted to take a prescription for botox with her because she was uncomfortable returning to Dr. Matheson for treatment. She testified that they refused to give her a prescription to take to her pharmacy, and she became rude because she wanted to leave and felt uncomfortable. She testified that, on the way home, she received a phone call from the respondents’ office manager saying that she was really rude to their receptionist, and that they were doing her a favour by treating her.

12The applicant testified that she saw Dr. Matheson again, and brought her two children into the exam room with her. The office manager requested that her children wait outside, but the applicant insisted that they stay in the room. The applicant testified that Dr. Matheson did not expose her breast again. The applicant also testified that, on this second visit to the respondents, she received a prescription for botox, and she did not return to Dr. Matheson for further treatment or botox administration.

13The applicant testified that she has seen other doctors since Dr. Matheson, and that she has not been examined in a manner similar to how Dr. Matheson examined her.

Respondents’ evidence

Dr. Matheson

14Dr. Matheson testified that he graduated from medical school in 1991, and worked in emergency. Referring to his resume, he explained that, in 2002, he started a company called CPM (meaning “chronic pain management”) Health Centres, which has 12 clinics across Ontario and the Maritimes. He trained about 70 doctors in pain management, and developed an interest in the use of botox in 2006.

15Dr. Matheson testified that he has been recognized as a teacher in chronic pain management by the College of Physicians and Surgeons of Ontario, and has been an expert witness in Ontario in the area of pain management. In September 2013, he was practicing out of several clinics, including one in Whitby, Ontario that he was a partner in, where he saw the applicant.

16Dr. Matheson testified that the applicant was referred to him by her family doctor, and he referred to a consultation letter, dated September 13, 2013, that he sent to the applicant’s family doctor after evaluating the applicant on that day.

17Dr. Matheson was asked to explain his physical examination of the applicant. He testified that, normally, he looks at a patient’s posture, the way they are sitting in a chair, and how they walk from the waiting room. When dealing with headaches, he testified that he usually approaches from the front, and initially looks at a patient’s eyes. He then examines various nerves, including nerves from above the eyes, and nerves at the sides and back of the head. He then palpates areas including the neck, scapula and pectoral muscles. He makes notes of his findings and goes through the patient’s range of motion.

18Dr. Matheson was asked about his notes in his September 13, 2013 consultation letter to the applicant’s family doctor, which state, in part, as follows:

Examination of the head and neck revealed tenderness throughout the neck and shoulders, bilateral greater occipital nerve tenderness, supraorbital tenderness and bitemporal tenderness. She has a head forward posture about two fingerbreadths forwards of neutral posture. She had spasm throughout the capitis, scalene and trapezius muscles bilaterally as well as tenderness and spasm of the pectoralis minor and major muscles, which is pulling her posture forward…

19He explained that “tenderness throughout the neck and shoulders” is revealed if the patient complains of pain when pressure is put on those areas. He testified that he is mostly standing behind the patient when he puts pressure on the head and neck. He testified that the “nerve tenderness” referred to is based on the patient’s report of pain when the area is touched, and that all of the tenderness referred to in his notes is determined by palpating, and the patient reporting how it feels.

20With respect to “spasm throughout the capitis”, Dr. Matheson explained that the capitis is a deep muscle on the neck, just behind the ear and a bit lower, and if it spasms it feels tight. He also explained that he would be standing behind the patient to examine the scalene, and then the trapezius which are the big muscles on both sides on the shoulders.

21Dr. Matheson also testified that he has to feel the pectoralis minor and major muscles, which are the thin muscle on the upper chest that attaches to the top of the shoulder, and the big muscle under the breast that pulls a patient forward, respectively. He testified that, if the patient has a bra or tight shirt, it has to be pulled forward to get access to those two muscles, because that is what he targets for the botox injections. He testified that, often, patients do not complain of pain in the pectoralis muscles, because they are pulling and the pain is felt in the back.

22Dr. Matheson testified that the examination of the applicant took about 5 minutes, or 10 minutes at the most, and the examination of her pectoralis muscles took 5 to 10 seconds.

23With respect to a treatment plan, Dr. Matheson indicated in his consultation letter that he believed nerve blocks would be a good temporary measure for the applicant, and that botox was a very good option for her. He referred to two prescriptions that he wrote for her, for a doctor to inject botox, dated September 13, and 28, 2015.

24In cross-examination, Dr. Matheson agreed that, during his examination of the applicant, no one else was in the room, and the door was closed. It was suggested to Dr. Matheson that, for an initial consultation, perhaps a female should be present in the room. He testified that it depends on the nature of the exam, and that if he is just doing head, neck and shoulders, it has not been needed before, but he does have two female staff members, so it could be requested. When asked if he should have warned the applicant that he was going to check her pectoralis muscles, Dr. Matheson testified that the applicant had seen multiple doctors before, so it would have been standard.

25Dr. Matheson agreed in cross-examination that the applicant was wearing a very stretchy dress. When it was put to him that he could have just pulled her bra strap off her shoulder to provide exposure, he agreed, maybe, with respect to the pectoralis minor, but testified that the pectoralis major is lower than that.

26When asked why the applicant was forced to fill her prescription at a specific clinic, Dr. Matheson testified that botox has to be kept cold the whole time it is handled, and the pharmacy they use delivers botox on dry ice to make sure it is kept cold, but not all pharmacies do that. He testified that he has had experiences of patients bringing in warm botox, and it is ineffective, resulting in the waste of a product which costs $1200.

Dr. Purdell-Lewis

27Dr. Purdell-Lewis referred to his extensive curriculum vitae at the hearing. He attended medical school in the United Kingdom, and is an anesthesiologist. He was licenced by the College of Physicians and Surgeons of Alberta in 1967, and by the College of Physicians and Surgeons of Ontario in 1992. He is currently a Clinical Professor, in the Department of Anaesthesia, in the Faculty of Health Sciences, at McMaster University. He is also a member of a number of professional organizations, including the Canadian Pain Society, the Canadian Academy of Pain Management, and the International Association for the Study of Pain.

28Between 2001 and 2007, Dr. Purdell-Lewis was employed as an Associate with Rothbart Pain Management Clinic, in North York, Ontario, where he saw a range of patients with various forms of chronic pain. Since 2007, he has been employed at a pain clinic in Burlington, Ontario, where he also sees a wide variety of patients with pain. He also lectures medical students at McMaster University in the area of chronic pain management.

29At the hearing, Dr. Purdell-Lewis was qualified as an expert in pain management. He testified that he had no prior relationship with Dr. Matheson, and that, at the hearing, he heard both the applicant and Dr. Matheson describe the physical examination that Dr. Matheson conducted of the applicant. An expert report of Dr. Purdell-Lewis was also provided in advance of the hearing.

30Dr. Purdell-Lewis testified that, in his opinion, Dr. Matheson met the standard of practice of a doctor regarding his examination of the applicant. More particularly, he testified that, in the present circumstances, one needs to know whether there is tenderness or spasm in the pectoralis muscles, because they go into spasm and pull the neck forward, further aggravating the neck from the injury. He testified that it would be a dereliction in duty to not do that, and it is necessary to determine if there is spasm and pain when those muscles are palpated.

31Dr. Purdell-Lewis also testified that, based on Dr. Matheson’s description, the manner in which he conducted the physical examination of the applicant seemed to be in order.

32In cross-examination, Dr. Purdell-Lewis was asked, if he were to have a female patient in an initial consultation, would he warn her before touching her breast area. He testified that, first of all, he does not touch breast areas, but he does tell patients that he is going to be palpating and touching.

ANALYSIS AND DECISION

Credibility

33To the extent that any issues addressed in this Decision turn on my assessment of the credibility of the parties, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at paras. 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

Was the applicant subjected to discrimination on the basis of sex in the provision of services?

The parties’ positions

34At the hearing, the applicant submitted that she was inappropriately exposed in a sexual manner, and thereby sexually harassed. She also submitted that she was inappropriately exposed without being warned, or asked for her permission.

35The applicant also submitted that her demeanor changed after the physical examination, and that she was rude to the respondents’ office manager, because of the sexual harassment she experienced. She also addressed why she did not say anything to the respondents’ staff, after the alleged harassment, and submitted that she was anxious, depressed and emotionally vulnerable. She queried why she would tell Dr. Matheson’s staff when he was the one who just harassed her.

36The respondents submitted that the only question is whether there was sexual harassment with respect to the one aspect of the physical examination of the applicant, involving the pectoralis muscles. They submitted that there was not really a factual dispute as to what happened.

37The respondents also submitted that doctors conduct examinations every day that, if not in a medical context, would be harassment or an assault. They submitted that, if the applicant wanted to establish that Dr. Matheson’s examination was not proper, the onus was on her to provide evidence with respect to the standard of care, and she did not do that. The respondents submitted that the Tribunal only has the evidence of Drs. Matheson and Purdell-Lewis, and Dr. Purdell-Lewis thought that the examination was completely appropriate, and he was not challenged on that.

Findings

38Where an applicant has provided sufficient evidence to establish a prima facie case of discrimination, the evidentiary burden may shift to the respondent to establish a non-discriminatory explanation for the actions in question; however, the onus of proving discrimination on a balance of probabilities, or the legal burden of proof, remains on the applicant throughout. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 109 – 119, and Peel Law Association v. Pieters, 2013 ONCA 396 at paras. 70 – 74.

39In the present case, the applicant alleges that Dr. Matheson unnecessarily exposed her breast during a physical exam. She testified that, while he was standing behind her and to her right, he pulled her bra and dress forward with his right hand. She alleges that he had a clear view of her breast.

40At the hearing, the applicant provided a photograph of her upper body, taken from her left side. She testified that she was attempting to demonstrate the way Dr. Matheson conducted the physical exam. I understand that, in the photograph, the applicant is wearing the same clothing that she wore when Dr. Matheson conducted the physical exam. The dress, or top, that the applicant is wearing in the photograph appears to have a “v-neck”. Using her right hand, the applicant appears to be pulling the right side of her top forward a couple of inches away from her chest. While it is not entirely clear, it appears that the applicant’s upper chest area on her right side is exposed, and not her lower breast area.

41In his evidence, Dr. Matheson did not disagree with the applicant’s demonstration in the photograph as to how he pulled her clothing forward during the physical exam. He reiterated that he needed access to the area, and testified that he does many of these exams.

42Having carefully considered the evidence and submissions, I am not satisfied that the applicant has met the legal burden of establishing that she was subjected to any discrimination or harassment on the basis of sex, as alleged at the hearing. I also do not find that the applicant was subjected to any sexual solicitation or advance.

43With respect to his examination of the applicant, Dr. Matheson explained in his evidence that such examinations involve palpating various areas, including the pectoral muscles. He reported to the applicant’s family doctor that the applicant had tenderness and spasm of the pectoralis minor and major muscles, which was pulling her posture forward. He also testified that he has to feel the pectoralis minor and major muscles, and that, if a patient has a bra, or a tight shirt, it has to be pulled forward to get access to those two muscles. With respect to the applicant’s assertion that he could have simply pulled her top and bra strap over her shoulder without exposing her, Dr. Matheson essentially testified that it may have sufficed for the pectoralis minor, but that the pectoralis major is lower than that.

44Dr. Purdell-Lewis testified that it was necessary for Dr. Matheson to know whether there was tenderness or spasm in the applicant’s pectoralis muscles, and that it would have been a dereliction in duty for Dr. Matheson to not make that determination. Dr. Purdell-Lewis also testified that, in his opinion, Dr. Matheson met the standard of practice regarding his examination of the applicant, and that, based on Dr. Matheson’s description, the manner in which he conducted the physical exam of the applicant seemed to be in order.

45In light of the evidence of Drs. Matheson and Purdell-Lewis, I am satisfied that, in the context of his physical exam of the applicant, Dr. Matheson needed to examine her pectoralis muscles. I also have no reason to doubt Dr. Matheson’s evidence that if a patient has a bra, or a tight shirt, it has to be pulled forward to get access to those muscles, and that he needed access to the applicant’s pectoralis muscles. In the absence of any medical evidence to the contrary, I find Dr. Matheson’s explanation in this regard to be reasonable, and consistent with the evidence regarding the manner in which he pulled the applicant’s clothing forward a couple of inches, in the area of her upper chest, while examining her.

46Whether or not the applicant’s breast was actually exposed to Dr. Matheson during the physical exam is by no means clear from the evidence. Even if the applicant’s breast was exposed, I find that the applicant has not met the legal burden of establishing that she was subjected to any discrimination or harassment on the basis of sex, contrary to the Code, in the context of the medical exam conducted by Dr. Matheson.

47In the circumstances, I also do not see how the applicant’s allegation that she was forced to go back to Dr. Matheson’s office a second time for treatment, because his office refused to give her a prescription to be filled at her pharmacy, could amount to any discrimination within the meaning of the Code.

48The Application is dismissed.