HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dawna Morrison-George
Applicant
-and-
Norman Krupa Medicine Professional Corporation
Respondent
DECISION
Adjudicator: Kevin Cleghorn
Indexed as: Morrison-George v. Norman Krupa Medicine Professional Corporation
APPEARANCES
) Dawna Morrison-George, Applicant ) Self-represented ) ) ) Norman Krupa Medicine Professional ) Dena N. Varah, Counsel Corporation, Respondent ) ) )
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in goods, services and facilities on the basis of race, colour, ancestry and disability. The Application alleges that the applicant experienced discrimination when she was treated differently than other patients under the care of her physician because of her race, colour, ancestry and/or disability. She cites differential treatment in terms of a requirement that she be subject to urine testing as a condition of continuing to receive pain medication. She claims that such testing was required only for the aboriginal patients of her physician. She also alleges reprisal in that she was dismissed from her physician’s practice after this Application was brought.
ISSUES FOR DETERMINATION
2I must determine the following after consideration of all of the evidence:
Was the applicant’s race, colour, ancestry or disability a factor in the decisions made by her physician in relation to services/treatment afforded to her as a patient?
Was there reprisal by the physician when she was dismissed as a patient after she initiated this human rights Application?
FACTS AND BACKGROUND
3The applicant is a 51 year old woman who self-identifies as an aboriginal person. She suffers from osteo-arthritis and a degenerative disc condition which cause ongoing and excruciating pain. It is not in dispute that she has a “disability” within the meaning of section 10(1) of the Code. Her extensive medical chart was filed by the respondent Dr. Norman Krupa, who is the principal of the corporate respondent, had been her primary health care provider for thirty years until he terminated their relationship in October, 2014. Prior to August 19, 2013, the applicant attended at Dr. Krupa’s office monthly and was prescribed percocets (a type of narcotic) to manage her pain. By all accounts, the parties had a good relationship prior to August of 2013. Dr. Krupa delivered all of the applicant’s children over the course of their patient-physician relationship.
4The applicant states that on August 19, 2013, Dr. Krupa informed her that he would commence urine testing (or urinalysis) on his aboriginal patients. On September 19, 2013, her prescription for percocets was reduced from 180 pills to 150 pills per month. The first urinalysis was performed on the applicant on November 18, 2013. The applicant was informed by Dr. Krupa on December 17, 2013, that she had tested positive for methadone. In a meeting with Dr. Krupa on January 17, 2014, the applicant was informed by Dr. Krupa that no one who ingests methadone should have access to that drug unless he/she is involved in an appropriate treatment program. The danger associated with ingesting methadone and percocets together caused Dr. Krupa to cancel the applicant’s prescription for percocets at that time. The applicant denied that she had been using methadone when first confronted with the test result. She later admitted that she had been provided with methadone by her sister on one occasion. She was unaware that mixing medications of that sort is dangerous and had not been advised previously of that fact by Dr. Krupa.
5The applicant wrote to Dr. Krupa on April 6, 2014, to express her belief that he was improperly targeting aboriginal people in his urinalysis testing program. She had been in unbearable pain since February, 2014. Her condition is made worse during cold or inclement weather. She was finding it increasingly difficult to manage her own household and assist with the care of her young grandchildren under the circumstances. Although she had sought assistance for pain relief at the emergency department of the Thunder Bay Regional Health Sciences Centre, there was a policy in place which prevented prescription medication from being available to patients through that source. The applicant states that she is in pain every second of every day. Her health will not improve over time. She has described her condition as “degenerative”.
6The applicant has been successful in obtaining the services of a new physician. She now attends with Dr. Michael Long at the Aurora Family Health Clinic. She is taking two percocets per day (down from the six per day once prescribed by Dr. Krupa) as well as naprosyn (an anti-inflammatory) and anti-depressant medications paxil and remeron. She advises that Dr. Long will examine her prescription again in three months’ time.
7Dr. Krupa confirmed most of the testimony of the applicant. He states, contrary to the evidence of the applicant, that he informed her on August 19, 2013, that he was changing his practice for all of his patients. He explained to her that he had received a letter from the Non-Insured Health Benefits Program (hereinafter “NIHB). He advised her that his approach to prescribing narcotics for patients was being monitored and that he would have to taper her dose of same. The urinalysis was suggested by the College of Physicians and Surgeons of Ontario (hereinafter “the College) to confirm that all of his patients were “safe”. It is a testing program that he has instituted for all of his patients who ingest narcotics, all of whom now have executed drug contracts with him.
8He produced a copy of the letter he received from Susan Pierce, Manager of Pharmacy Benefit for NIHB of Health Canada dated July 24, 2013. The letter raised a concern with the extent of benzodiazepines and/or opioids being prescribed by Dr. Krupa for NIHB clients (persons of First Nations or Inuit background). In response to that letter, he has screened 107 patients to date through urinalysis, of whom only 15 were aboriginal persons. He has reduced the narcotics prescriptions for all of his patients. A follow-up letter from Ms. Pierce dated March 4, 2014, confirmed that Dr. Krupa had reduced considerably the median daily dose of opiods and benzodiazepines for NIHB clients. He denies ever telling the applicant that aboriginal patients would be the only individuals subject to urinalysis. The adjustments to his practice affected all of his patients. He subsequently and systematically tapered the narcotics prescriptions for all of his patients.
9Dr. Krupa describes opiods as being any type of codeine-based drug, which includes percocets, oxycontins, dilaudid, morphine or methadone. Such drugs can also be referred to as narcotics. Methadone is considered the most dangerous drug as it has been linked to twenty accidental deaths in the past year. When the applicant tested positive for methadone in November, 2013, Dr. Krupa became concerned for the applicant’s safety. The impact of mixing medications might impact the applicant’s health and could potentially be fatal.
10An attempt was made to treat the applicant with alternative pain medication after he discontinued her percocet prescription. Her last percocet prescription from him was on January 17, 2014. Due to the safety concerns surrounding her mixing of medications, he later prescribed for her lyrica, remeron and naprosyn in place of narcotics. The objective was to taper the applicant off narcotics completely on a gradual basis to avoid the impact of withdrawal effects. The medical reasons for his decision amounted to concerns for her safety due to mixing of medications and his belief that alternative medication of a non-narcotic variety could properly deal with the pain. He made a referral to a rheumatologist for the applicant and sent the necessary paperwork in that regard. He suggested that a long waiting list could result in a delay of one year or more before the applicant can attend with a rheumatologist. The applicant states that she still has not seen a rheumatologist as yet.
11Dr. Krupa also confirmed that 42 of his patients have failed random drug screens. All of those patients have had their narcotics prescriptions eliminated. He has a practice which includes patients of aboriginal and non-aboriginal descent. He maintains that the aboriginal background of the applicant had no impact on the medical decisions he made for her. He has been advised by the College that he cannot continue to treat patients who are in a conflictual relationship with him, whether arising from litigation or a human rights complaint of this nature. If he had failed to take action in his practice generally on the issue of narcotics prescribing, he anticipated that there would have been a complaint made by NIHB to the College against him.
12An expert report prepared by Dr. Keith A. Thompson dated November 29, 2014, was filed by the respondent. The applicant consented to the report being admitted on consent and declined the opportunity to cross-examine Dr. Thompson. Dr. Thompson was qualified as an expert in family medicine. The crux of Dr. Thompson’s evidence is that “Dr. Krupa has displayed acceptable practice and expected standard of care in his management of (the applicant).” He advised that his review of the applicant’s medical chart revealed a reduction in her daily percocet dose of one tablet per day (a 16% reduction) prior to the positive test result for methadone. After the test result became known, Dr. Krupa reduced the applicant’s percocet dosage by 10% per week, which Dr. Thompson stated was within the expected standard of care for chronic pain management.
13Dr. Thomson also commented on the dismissal of the applicant from Dr. Krupa’s practice after the Application was filed. His view is that any litigation or complaint of that type would impact adversely on the therapeutic relationship between patient and physician. As such, it would not have been appropriate for Dr. Krupa to continue as the physician for the applicant i.e. it would not have been standard of care to maintain that relationship after the Application was served on Dr. Krupa.
THE LAW
14Sections 1 and 8 of the Code provide as follows:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability..
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing..
15The issue is whether the applicant experienced differential treatment because of an enumerated ground in the Code or reprisal for pursuing her rights under the Code.
16I must decide whether the applicant’s race, colour, ancestry and/or disability played any role or was at all a factor in the type of treatment that she received from Dr. Krupa. The applicant must prove on the balance of probabilities that the respondent did indeed discriminate against her based on race, colour, ancestry and/or disability. I must also decide whether the act of dismissing her from his practice amounted to reprisal for her initiation of this Application. In my view, she has failed to establish discrimination or reprisal in this instance.
17It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.
18This Tribunal has stated on several occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201; Badvi v. Voyageur Transportation, 2011 HRTO 1319; and Watt v. Cambridge (City), 2014 HRTO 218. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory unless there is proof that one or more of these characteristics were a factor in the treatment the applicant experienced. It is readily acknowledged that various experiences of unfairness, not specifically defined as discrimination in the legal sense, can result in significant negative consequences to one degree or another. The applicant has failed to show that she experienced any unfair treatment in an objective sense. She assumes that there has been discrimination in her circumstances, or that discrimination is the basis for the manner in which she has been treated as opposed to the treatment being a product of appropriate medical practice.
19The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment, in her view, is not generally sufficient to support an inference of discrimination. The issue for the Tribunal now is whether there is sufficient direct or indirect evidence available to connect the unfair treatment, as she construes it, with the applicant’s personal characteristics. The only evidence that can be offered by the applicant that race or ancestry played a role in her treatment was the comment that Dr. Krupa allegedly made that he was doing drug testing on his aboriginal patients exclusively. While I accept that the impetus of Dr. Krupa’s decision to change his narcotics prescribing practices was the letter from NIHB, I do not accept that he targeted his aboriginal patients in any way, shape or form. His uncontradicted evidence is that he changed his practice surrounding narcotics prescribing for all patients and that he is testing all of his patients, albeit on a gradual basis, to ensure that there are no safety concerns for them. Indeed, his efforts may have saved lives or avoided adverse health consequences for numerous patients (including the applicant) who were mixing medications, intentionally or otherwise, to their detriment. I find that while Dr. Krupa mentioned to the applicant the contents of the NIHB letter that he did not say that only aboriginal patients would be subject to urinalysis. I further find that the applicant assumed that only aboriginal patients of Dr. Krupa would be tested as a result of the population served by NIHB (First Nations and Inuit people). These findings are consistent with the evidence of Dr. Krupa’s actions in the aftermath of receipt of the letter from NIHB. He tested his patients of all races and ancestry to comply with the NIHB directive and to avoid a complaint being made to the College of Physicians and Surgeons.
20Since the applicant is unable to point out circumstances beyond her own assumptions or belief, and the one conversation referred to above, the Application cannot succeed. It is not clear even that the applicant has experienced any differential treatment. The applicant has not offered anything beyond her own speculation or suspicion that any treatment afforded to her was different than that which any other patient of Dr. Krupa’s received at the relevant time and even today. I am mindful that the parties enjoyed a completely satisfactory and uncontroversial thirty year patient-physician relationship prior to 2014.
21Beyond the one conversation, there is no evidence in this instance that the respondent ever engaged in even unfair treatment of the applicant, or more significantly, that the treatment related in any way to any of her personal characteristics. The evidence in this case is utterly lacking in any particulars which establish a nexus with a proscribed ground of discrimination under the Code. There is no evidence whatsoever to suggest that the actions of Dr. Krupa amounted to any form of discrimination within the meaning of the Code as against the applicant at any time, or that the applicant’s personal characteristics were a factor in any way, shape or form in the decisions that he made about her medical care. There is a significant difference in discrimination which can be linked to a prohibited ground under the Code and the impact of actions experienced by a person through conduct which does not amount to a breach of the Code. I accept quite readily that the impact of Dr. Krupa’s treatment caused the applicant physical pain, despite his best intentions for her over-all health. This Tribunal has noted previously that it has no jurisdiction to evaluate a physician’s clinical decisions as to whether they are medically appropriate: see Kline v. Ontario (Community Safety and Correctional Services), 2013 HRTO 230 at paras. 21 and 24; Bruce v. London Health Sciences Centre, 2014 HRTO 106 at para. 36; and Moshi v. Ontario (Ministry of Community Safety and Correctional Services), 2014 HRTO 1044 at para. 43. There is also no basis to conclude that the applicant has been discriminated against on the basis of disability per se.
22In that regard, in Moshi, above, at para. 43, this Tribunal states:
An applicant cannot establish that a physician, for example, discriminated against him or her merely by showing that the doctor made a clinical decision based on the applicant’s disability, which clinical decision turned out to be disadvantageous for the applicant. Doctors may make sound clinical decisions that end up compromising their patient’s health, for some reason. They can also make mistakes that have adverse medical consequences for their patients. However, neither of these situations constitutes discriminatory treatment under the Code. As the respondent points out, a physician’s clinical decisions are necessarily based on his or her patient’s disability and, in that sense, may be said to be “linked to disability”. However, the existence of this kind of link is not indicative of discrimination. In order to establish that a physician, for example, has discriminated against someone “because of” disability, an applicant would have to establish that there [was some] arbitrariness in the manner the physician treated him because of his disability. As the Supreme Court emphasized in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, at paras. 48-49, the essence of discrimination is in the arbitrariness of its negative impact.
23I do not find that there was any arbitrariness in the actions of Dr. Krupa. His decision to taper the dosage of narcotics for his patients, including the applicant, is appropriate, in his view, in terms of the long term health impacts of taking such medication. His decision to gradually wean the applicant off percocets entirely was based upon his perception of the real and apparent danger to her of mixing medications.
24In terms of reprisal, this Tribunal has established that the reprisal provision in the Code applies to actions which are specifically intended to retaliate against an individual who asserts his/her human rights. Moreover, the following elements need be present:
An action taken against, or threat made to, the applicant;
The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and
An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
See Noble v. York, 2010 HRTO 878 at paras. 31-33 and Iarossi v. Herzog, 2012 HRTO 893 at para. 34.
25While the first two aspects of that test may be met, I am not satisified that there was any intention on the part of Dr. Krupa to retaliate for the Application being brought. Although not definitive on the issue, I accept the general notion of Dr. Thompson’s evidence that it would be a breach of the standard of care for Dr. Krupa to continue to care for the applicant after she commenced this Application. The parties had become involved in an adversarial relationship at that point. The clinical decisions of a physician for a patient must be based upon sound medical judgment. Such decisions should not be influenced by a highly charged conflictual relationship arising out of the nature of the patient’s care prior to the initiation of the Application. In my view, if Dr. Krupa continued to care for the applicant after this Application was brought, he would have had a personal and/or professional conflict of interest in a real sense. Dr. Krupa has provided a reasonable explanation for terminating the physician-patient relationship in that regard. His termination of the patient-physician relationship is not reprisal in the sense contemplated by section 8 of the Code.
26I found both the applicant and Dr. Krupa to be candid and forthright in their testimony. I do not disbelieve the applicant in relation to her version of the conversation which occurred between them on August 19, 2013; rather I consider that she misinterpreted the information being given to her by Dr. Krupa on that day and drew the erroneous conclusion that he was subjecting only his aboriginal patients to urinalysis.
27In that regard, I have considered the testimony of both the applicant and Dr. Krupa in the context of the test established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 357, as follows:
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 a 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.
I find that the evidence given by Dr. Krupa relating to the content of the conversation of August 19, 2013, is consistent with his actions subsequent to that conversation. There is no evidence to suggest that he has not altered his narcotics prescribing practices for all of his patients. As such, there is no differential treatment or discrimination as against the applicant which can be linked to a protected ground under the Code.
28The applicant has therefore not met her onus to establish that a breach of the Code has occurred on the balance of probabilities.
DECISION
29For all the foregoing reasons, the Application is hereby dismissed.
Dated at Toronto, this 3rd day of June, 2015.
“Signed By”
Kevin Cleghorn
Member